20759422
Description
Flashcards by JD Advising, updated more than 1 year ago
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Created by JD Advising
almost 5 years ago
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| Question | Answer |
| What are the differences between attorney-client privilege and duty of confidentiality | a) The attorney-client privilege is an evidentiary rule that prevents a court from using its powers to compel the revelation of confidential communications between an attorney and a client. (This is in contrast to the professional obligation of confidentiality, which prohibits an attorney from voluntarily revealing information relating to the representation of the client.) b) Further, the attorney-client privilege protects only confidential communications, versus the duty of confidentiality, which covers confidential communications and any other information relating to representation. c) The attorney-client privilege only prohibits disclosure of information. The duty of confidentiality prohibits disclosure of information and using it against the client. |
| What is the attorney-client privilege? | The attorney-client privilege is an evidentiary rule that prevents a court or other governmental entity from using its powers to compel the revelation of confidential communications between an attorney and a client (or the agents of either). |
| Who holds the attorney-client privilege? | Client holds the privilege: The client can claim or waive the privilege because the client is the holder of the privilege. The lawyer has a duty to invoke the privilege if the client is not there to claim it. |
| When does the attorney-client privilege expire? | The attorney-client privilege lasts forever. a) It survives the termination of the attorney-client relationship. b) It survives death. It lasts even if the client dies. |
| What are the exceptions to the attorney-client privilege? | 1) It does not apply if the client seeks the attorney’s services to engage in or assist a future crime or fraud. 2) It does not apply to a communication that is relevant to an issue of breach, by either the attorney or the client, of duties arising out of the attorney-client relationship. 3) It does not apply in civil litigation between two persons who were formerly joint clients of the attorney. 4) It does not apply when the attorney can furnish evidence about the competency or intention of a client who gives or attempts to give property by will or during life. |
| What is the work-product doctrine? | Material prepared by a lawyer for litigation or in anticipation of litigation is immune from discovery unless the opposing party can show a substantial need for the material and an inability to gather the material without undue hardship. However, a lawyer’s mental impressions, such as notes regarding when or not he believed his client was guilty or the reliability of a witness are absolutely immune (unless such immunity is waived by the lawyer). |
| What is the duty of confidentiality? | A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted. This confidentiality rule applies to both matters communicated in confidence by the client and to all information relating to the representation, whatever its source. (This is broader than the attorney-client privilege!) |
| When does the duty of confidentiality expire? | The duty of confidentiality lasts forever: the duty of confidentiality continues after the client-lawyer relationship has terminated and survives death. |
| How does a client authorize disclosure of confidential information? | Disclosures may be expressly or impliedly authorized by client.Expressly authorized: if a client expressly authorizes an attorney to reveal information by way of informed consent, the attorney is authorized to reveal it. Impliedly authorized: Information is impliedly authorized in a few scenarios: (1) A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation (unless the client’s instructions or special circumstances limit that authority). (2) Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. |
| What are the exceptions to the duty of confidentiality? (1) | A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary in the following situations: (1) Death or harm: to prevent reasonably certain death or substantial bodily harm. (2) Crime or fraud in which lawyer’s services have been used: to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services. (3) Ethics: to secure legal advice about the lawyer's compliance with these MRPC. (4) Controversy between lawyer and client: to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. (1/2) |
| What are the exceptions to the duty of confidentiality? (2) | A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary in the following situations: (5) Law: to comply with other law or a court order. (a) Absent informed consent of the client to do otherwise, the lawyer should assert, on behalf of the client, all non-frivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal. (6) Conflicts of interest: to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. (2/2) |
| What information is not covered by the duty of confidentiality? | Information that becomes generally known then the information is no longer considered to be confidential or covered by the confidentiality rule. MPRE Tip: Information is not “generally known” just because it has been discussed in open court, or is available in court records, public libraries, or other public repositories. “Information that is publicly available is not necessarily generally known.” ABA Formal Opinion 479 (2017). |
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