John Steele, Attorney at Law
Jan 03, 2016
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