John Steele, Attorney at Law

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Confidentiality

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Topics

1. Definitions2. Comparison3. ABA Approach

1. Rule; Exceptions; Other rules

4. California Approach1. Statute; CRPC; Case law; Draft

Rules

5. Quiz

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1Definitions

Confidentiality

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Three definitions

Confidentiality: a broad fiduciary duty to not use or disclose information relating to the ACR unless approved by the client or the rules

Privilege: a right to refuse to answer a question while under oath, if certain technical elements are met.

Work Product Protection: a judge-created right of lawyers to shield some of their thoughts about imminent or existing litigation

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Confidentiality Defined

ABA: All information relating to the ACR

California: All information relating to the ACR that could be embarrassing or detrimental

Conceptual difficulty: can we speak at all?

Implied and express consent to disclose

“Exceptions” that defeat client objections to disclosure

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Privileged Defined

A communication between an actual or potential client (or the client’s agent) and the actual or prospective attorney (or the attorney’s agent) for the purposes of rendering legal advice and not for the furtherance of a crime or fraud.

Evidentiary concept Burden of proof on proponent of

privilege Lawyers must defend the privilege

unless they’re excused from doing so.

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Work Product Defined

A lawyer may refuse to disclose documents and tangible things reflecting the lawyer’s thoughts and impressions made in the anticipation of litigation.

A necessary aspect of adversarial justice

Two levels of WPP: Opinion/core WP (which is virtually never

discoverable by opponents) Non-opinion (discoverable upon showings

of substantial need and undue hardship)

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2Comparison

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Duties to Clients: Confidentiality: Comparison to A/C Privilege

Confidentiality is broader than privilege Attaches to all not-generally-known

information related to representation

Attaches to information that is not privileged

Attaches, e.g., to information learned from third parties

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Confidentiality & Privilege

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3ABA

Approach

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ABA Approach

MR 1.6DefinitionExceptionsOther rules are referenced

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ABA Approach

MR 1.6(a)Definition: “information related to the representation of a client”

Broad!Express or implied consent

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ABA Approach

MR 1.6(b)(1) “May,” not “must”! “To prevent reasonably certain death or substantial bodily injury”

DSBH

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ABA Approach

MR 1.6(b)(2-3) Prevent or rectify client crime or fraud resulting in substantial injury to financial interests or property of another; and

In the further of the crime or fraud, the client has used the lawyer’s services!

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ABA Approach

MR 1.6(b)(4) To secure legal advice about the lawyer’s ethical obligations

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ABA Approach

MR 1.6(b)(5) To establish a claim or defense on behalf of lawyer in client-lawyer dispute; or lawyer’s defense in criminal or civil matter in which client was involved; or to respond to allegations against lawyer

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ABA Approach

MR 1.6(b)(6) To comply with other law or court orderJudge rules that you must disclose

Other Model Rules 1.13; 1.14; 3.3; 4.1; 8.1; 8.3 Must regardless of 1.6 (3.3) May under 1.6 = Must (4.1; 8.1, 8.3)

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4California

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Duties to Clients: Confidentiality: Legal Sources

California B&P Code §6068(e): “Maintain inviolate the confidence, and

at every peril to himself or herself to preserve the secrets, of his or her client”

Crime leading to death or substantial bodily harm

CRPC 3-100 Case law: disputes between clients

and lawyers; lawyer defense in criminal matters?

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Quiz!

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Quiz

Define the duty of confidentiality Distinguish the duty of confidentiality from

the concept of attorney client privilege Give an example of something that is

confidential but not privileged Identify the number of the ABA rule on

confidentiality List the exceptions in the ABA rule Identify the two places where the California

rules exists Define California’s one express exception to

the duty of confidentiality