TOPIC B: CONFIDENTIALITY

2016 P.R.Prof. Janicke

TOPIC B 2

ALL INFO “RELATING” TO THE REPRESENTATION

• MUCH BROADER THAN “PRIVILEGED COMMUNICATIONS”

• EVEN COVERS PUBLICLY AVAILABLE INFO, IF LEARNED IN COURSE OF REPRESENTATION

• [MUST BE A PRACTICAL LIMITATION?]2016

TOPIC B 3

• THE RULE IS NOT LIMITED TO WHAT THE CLIENT TOLD THE LAWYER

• TODAY, LAWYERS ARE OFTEN INVESTIGATORS– THEY INTERVIEW– THEY MAKE INQUIRIES– THEY STUDY DOCUMENTS

2016

TOPIC B 4

BASIC RULE• R. 1.6:

• INFO CANNOT BE DIVULGED WITHOUT INFORMED CONSENT AS DEFINED IN R. 1.0(e) [NOT EASY TO COMPLY]

– BUT CAN BE IMPLIEDLY AUTHORIZED– HOW ELSE COULD A LAWYER

FUNCTION?2016

TOPIC B 5

RULE 1.6(b) EXCEPTIONS

• LAWYER MAY (i.e., HAS THE OPTION TO) REVEAL CONFID. INFO:– TO PREVENT FUTURE DEATH OR

SERIOUS BODILY HARM– PREVENT FUTURE CLIENT CRIME OR

FRAUD IF THE LAWYER’S SERVICES WERE INVOLVED IN THE WRONGDOING

– RECTIFY CLIENT’S PAST WRONGS IF THE LAWYER’S SERVICES WERE INVOLVED IN THEM

2016

TOPIC B 6

WHERE WARNING IS NOT ALLOWED

• LAWYER LEARNS FROM CLIENT: CLIENT HAS PLAN TO HACK INTO BANK AND STEAL $$

• WANTS LAWYER’S ADVICE ON WHERE TO PUT THE MONEY

• LAWYER DECLINES TO ADVISE, BUT CONTINUES THE REPRESENTATION

• LAWYER CANNOT WARN THE BANK R. 1.6(b)(2) – NO LAWYER SERVICES USED

2016

TOPIC B 7

MORE EXCEPTIONS• DISCLOSURE NEEDED TO CHECK

ETHICS RULES COMPLIANCE– TO CLEAR CONFLICTS– TO GET ETHICS OPINIONS

• DISCLOSURE NEEDED TO DEFEND LAWYER, CIVILLY OR CRIMINALLY

• DISCLOSURE NEEDED TO COMPLY WITH A COURT ORDER [OFTEN TROUBLESOME]

2016

TOPIC B 8

USING INFO, W/O REVEALING IT,

IS LIMITED• LWYR CANNOT USE CONFID. INFO TO

THE CLIENT’S “DISADVANTAGE”

• BUT CAN USE IT – WITHOUT REVEALING IT – OTHERWISE

R. 1.8(b)

2016

TOPIC B 9

EXAMPLE:• LEGAL RESEARCH RESULTS

• CAN BE USED

• BUT CANNOT REVEAL FOR WHOM THE WORK WAS DONE, ETC.

2016

TOPIC B 10

QUESTION:• CAN YOU REVEAL THAT YOU

REPRESENT (OR DID IN THE PAST) A COMPANY IN COURT?

• STRICTLY SPEAKING, NO– IS NOT TO CLIENT “DISADVANTAGE”

UNDER R. 1.8– BUT SEEMS PROHIBITED UNDER R. 1.6

2016

TOPIC B 11

MORE RE. THE EXCEPTIONS• NEED TO CHECK FOR CONFLICTS

– OFTEN SPEAKING OUTSIDE THE FIRM

– WITHIN THE FIRM, DISCLOSURES AND SUBSTANTIVE DISCUSSIONS AMONG LAWYERS ARE PRESUMED PERMITTED R. 1.6 C5, last sentence

2016