Confidentiality

Evidentiary Protection – Privilege and Work Product Doctrine

Express or Implied Authority
Waiver
Exceptions
Physical Harm, Crime/Fraud, Seeking Advice, Self-Defense, Compensation
Disputes, Compliance with Law or Order: Physical Evidence, Practice Before a
Tribunal
A lawyer may not reveal any information relating to the representation of the client.
Unless: Given implied authorization (MR 1.6) or an exception applies
Attorney Client Privilege (different than duty of confidentiality)
A/C prevents a lawyer from voluntarily revealing information
Duty of Con. Keeps lawyer from being forced to testify or reveal info about client
 Information Covered
o Confidentiality covers more than a/c
 Covers confidential communications and any other information relating to
representation of the client
o a/c protects only confidential communications
o disclosure v. use
 a/c only covers disclosure of info.
 Confidentiality covers disclosure and use
 Disclosure – disclosing a clients info without their consent
 Use – using their info. To the disadvantage of a client
 Covered in restatements §§ 68 – 86
 Clients
o Someone seeking legal advice from an attorney
o Corporate clients
 Communications between lawyer and high-ranking officials
 Or other employees if:
 Employee communicates at the direction of employee’s superior
 The employee knows that the purpose of the communication is to
obtain legal advice for the corporation; and
 The communication concerns a subject within the scope of the
employees duties to act for the corporation
Barbri video
 Attorney client privilege is really an evidence exclusion rule
 Client is anyone seeking legal advice
o When a corporation its is their agents
 Must be records made for the purpose of obtaining legal assistance
o Cannot take records that already exist and give them to an attorney for them to
be privileged.
 Exceptions to privilege
o Aid in future crime or fraud
 Past crimes protected
o Self-protection
 If client is suing you then you can reveal stuff
o Litigation between former joint clients
 Work product doctrine
o Only have to disclose if the other side shows they have a substantial need and
would suffer undo hardship trying to get it
o Your opinions and mental impressions almost never have to be shared
 Exceptions to confidentiality
o To prevent death or substantial bodily harm
o Prevent financial injury to another if services used in furthering the crime or
fraud
 Can disclose past crime if it will prevent or fix damage
o Can disclose to defend yourself in a dispute
o Can seek advice about legal advice about client
o To find and resolve conflicts of interest
o Comply with a court order or law
 Duty of candor to tribunal supersedes duty of confidentiality
 Duty to safeguard confidential info. – required to make reasonable efforts to prevent
disclosure or access

a/c – 4 elements
communication (written or oral), made between privileged persons, inconfidence, for the
purpose of seeking legal advice/assistance