10 Questions
Who decides whether to disclose confidential information if the conditions in Rule 1.6(b)(1), (2), or (3) are satisfied?
The lawyer
In the context of privilege, who decides if the crime-fraud exception is present?
Judges
What is required if a party challenges an opponent’s claim of privilege on the ground of the crime-fraud exception?
Proof that the client intended the communication to further a crime or fraud
Who must prove a reasonable basis to believe that the client intended the communication to further a crime or fraud?
The judge
What role do judges play in determining if the crime-fraud exception to privilege is present?
They decide if the exception is present
How does the lawyer-client confidentiality differ from attorney-client privilege?
Privilege requires judge involvement, confidentiality does not
What is one key concern regarding voluntary disclosure of confidential information?
Potential waiver of attorney-client privilege
What does Rule 3.3(c), studied in chapter 7, mandate regarding confidential communications?
It mandates disclosure of certain confidential communications in specific situations
What happens if a confidentiality exception permits disclosure but there are concerns about attorney-client privilege?
The client must waive all privileges before disclosure
What role does Jeffrey Purcell play in the context of legal services in Boston, as mentioned in the text?
He is a lawyer facing a dilemma involving legal ethics and confidentiality
Study Notes
Attorney-Client Relationship and Confidentiality
- A lawyer may not reveal client information unless there is an exception or the client has given consent (Rule 1.6(a)).
- The common interest doctrine is discussed in chapter 5B3.
Defining Confidentiality
- Confidential information includes information relating to the representation of a client (Rule 1.6(a)).
- Confidential information is not limited to privileged communications from the client.
- Examples of confidential information include conversations with eyewitnesses and communications from non-clients.
Fiduciary Duties and Confidentiality
- Lawyers owe fiduciary duties to their clients as agents.
- A lawyer may not use confidential information about a current client to the client's disadvantage (Rule 1.8(b)).
- A lawyer may not reveal confidential information about a former client unless there is an exception (Rule 1.9(c)(2)).
- A lawyer may not use confidential information about a former client to the client's disadvantage unless there is an exception or the information is generally known (Rule 1.9(c)(1)).
Privilege and Confidentiality
- Privileged communications are a subset of confidential information.
- Confidential information may not be privileged if the source is not the client.
- Examples of privileged communications include client statements about an accident.
Respect for Client Autonomy and Dignity
- Respect for a client's dignity and personhood may impact the breadth of the confidentiality obligation and the privilege.
Organizational Clients
- Lawyers are impliedly authorized to share client information within their law offices to represent clients (Rule 1.6(a) commentary).
- This authorization applies even if the retainer agreement names only one lawyer.
Exception to Confidentiality and Privilege
- The crime-fraud exception to privilege and confidentiality may be invoked if a party challenges an opponent's claim of privilege (Rule 3.3(c) and chapter 7).
- Only judges, not lawyers, decide if the crime-fraud exception to the privilege is present.
- A lawyer decides whether to disclose confidential information under Rule 1.6(b)(1), (2), or (3).
Test your knowledge on legal ethics rules including attorney-client relationship, fiduciary duties, and common interest doctrine. Learn about confidentiality and exceptions when it comes to revealing client information.
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