PR Ch 4
What are the consequences of failing to protect client confidences?
- Client may be harmed (e.g. admissions made) - Client may discharge lawyer or fail to pay fee - Lawyer may be subject to discipline - Lawyer may be liable in tort or contract for negligent or intentional breach of fiduciary duty - Lawyer may be disqualified from representation - Lawyer may be enjoined by a court from further revelation
What constitutes the risk of Future injury or death?
Comment 6 to Rule 1.6: Death or substantial bodily harm is "reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer harm at a later date if the lawyer fails to take action necessary to eliminate the threat."
What is the purpose of having an ethics rule on confidentiality?
Consider whether the rules of ethics provide clear enough guidance for attorneys in cases involving the possible disclosure of confidential information. The primary ethical rule related to confidentiality is Rule 1.6 Confidentiality of Information In general, you are not permitted to voluntarily tell other people any information gained in the course of representing a client without your client's express or implied consent, or unless some other exception applies which permits disclosure of the information
Problem 4-2 The Buried Bodies, Scene 1 You represent Robert Garrow, who has been charged with the murder of a sixteen year old boy named Philip Domblewski. Garrow told you that he committed this crime. You advise him to plead "not guilty by reason of insanity." He agrees. There are two other missing teenagers in the area, Susan Petz and Alicia Hauck. Many people think Garrow may have killed them, and also killed Dan Porter, Susan Petz' boyfriend, whose body was found. If so, you may be able to arrange a plea bargain of guilty by reason of insanity if you offer information about the other victims. You explain this to Garrow. He says he did kill these other three, and he tells you the location of the bodies. What can or should you do with the information that you have learned from your client? What are the options? Would 1.6 provide any basis on which you would be authorized to disclose the location of the bodies?
Here, Garrow has disclosed the location of the bodies of other people he has killed. While it may be cruel not to reveal the location of the bodies and to use this information for a plea bargain, this is technically still privileged information that does not fall under the exceptions of Rule 1.6. The court held that Belge (Garrow's attorney) had an ethical obligation to protect Garrow's confidences. Also, the judge noted that Garrow had a fifth amendment right not to incriminate himself, and Belge had a duty to protect the client's right.
What are some regulations regarding communication by email?
ABA Formal Opinion 99-413 (March 10, 1999) concluded that a lawyer may transmit information relating to the representation of a client by unencrypted email without violating the Rules of Professional Conduct as there is a reasonable expectation of privacy. To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, . . . Comment 8 to Rule 1.1 (2012) Additionally, according to ABA formal opinion 11-458, A lawyer sending or receiving substantive communications with a client via email or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.
What types of information are protected as confidential under Rule 1.6?
All information relating to the matter on which the lawyer is representing the client, except information that is "generally known". Personal information relating to the client that the client would not want disclosed. Information learned from the client, and information learned from interviews with witnesses, documents, photographs, observation, or information gained from other sources Information acquired before the representation begins (such as during a preliminary consultation) and after the representation concludes. Notes or memoranda that the lawyer creates relating to the matter Ethical obligation applies to current clients, former clients [1.9 (c)], and to prospective clients [1.18(b)].
When does attorney-client privilege apply?
Applies when a client communicates in confidence with a lawyer for the purpose of obtaining legal advice.
You represent Twenty-First Century Foods and, in reviewing documents to be submitted to the FDA, come across certain preliminary test results that show that the sweetener used in their Diet Kola, increased rate of limb deformities in offspring of lab animals given high concentrations of the sweetener and that pregnant women who use a medication containing similar substance to the sweetener in Diet Kola resulted in miscarriages. When you meet with your friend later, she is drinking Diet Kola and informs you that she is pregnant. Without violating 1.6, can you say anything to your friend to warn her of potential dangers of the sweetener in Diet Kola? Would you be subject to discipline if you disclosed any information to your friend? If you assume Rule 1.6 would prohibit disclosure, would you warn your friend anyway under the circumstances? Is it ever appropriate to violate an ethical rule?
If the lawyer believed that substantial bodily harm would occur to the friend, this would fall in the exception of Rule 1.6
Problem 4-1 Your Dinner with Anna You just started your first job with a firm after being licensed. You spent the day working on a civil suit against the police department on behalf of a client whose arm was broken by a police officer. At the end of your first day, you meet a friend who is not a lawyer at a restaurant for dinner. She asks: What are you working on? What, if anything, can you tell her? Suppose you tell Anna about the client, but do not reveal the full name of the client. Why might you want to talk with Anna about the case you are working on? Did you violate Rule 1.6(a)? Consider the rule and the comments. Since you didn't reveal Joey's last name, is the rest of the conversation okay, or might there still be an ethical violation?
Lawyers should not give details about a case, especially not names, locations, or other parties involved. If the information is generally known, it is not necessarily wrong, however, lawyers must be careful in case they reveal confidential information. Note in Rule 1.6 comment 4, it states "A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved" The lawyer should not give enough details for a person to ascertain the identity of the client involved.
Under what circumstances are you impliedly authorized to disclose confidential information?
Looking at Rule 1.6(b), a lawyer may reveal information to the extent a lawyer believes is reasonably necessary: to prevent death or injury prevent crime or fraud prevent injury to financial interests or property of another to secure legal advice about the rules to comply with a court order (see more listed in the rule)
What is required to constitute informed consent to the disclosure of confidential information?
Looking to Rule 1.0(e) defining informed consent, "denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of reasonably available alternatives to the proposed course of conduct
If the lawyer said to much to the friend Anna in the previous problem, can the lawyer solve the confidentiality problem by obtaining Anna's agreement to keep the information confidential?
No, once it is disclosed to Anna, this has been disclosed too a third party, and if somehow the information got back to your client or the defendant, Anna could be called as a witness, and the client did not consent to Anna knowing the information.
You represent Executive Leasing Services, which is the principal client of your law firm, and learn confidentially from their accountant that the owners of Executive Leasing were creating fictitious leases to provide security for additional loans, the proceeds of which they were then using for their own personal benefit. When you raise the issue with owner, he acknowledges submitting forged leases to the bank but promises not to continue the practice in the future. Which of the following are required or permitted by the ethical rules? - Reveal fraud to bank or the DA if owner refuses - Do not reveal fraud but withdraw from further representation - Do not reveal fraud, continue representation but monitor client conduct more closely
Rule 4.1 states: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
During Garrow's trial, Frank Armani's daughter Dorina, age 15, visited her father in the courthouse. Garrow looked at her and said "Nice to see you again, Dorina." He had never met Dorina before. This greeting suggested that Garrow had been stalking Dorina. When he was arrested, Garrow had been shot. After that, he pretended to be paralyzed and unable to walk. Because they thought he couldn't walk, the guards did not watch Garrow carefully enough, so he escaped from prison. The guards found a "hit list" in his cell. Your name as his attorney is on it. The police are searching for Garrow. They ask you where he might be. Garrow told you the location of one of his hideouts. Can/should you give the police this information? Does termination of representation end your obligation of confidentiality? Under 1.6 (b), are you permitted to disclose information gained in the course of your representation as to where Garrow might be hiding?
The duty of confidentiality is continuous, even after you have finished representing a client you still have an obligation to protect your client's confidentiality. When Garrow escaped, the police approached Armani about a potential location. While Armani is still held to client confidentiality, the facts have now changed because now there is chance of harm to other people, so under Rule 1.6(b)(1).
Problem 4-3 The Buried Bodies, Scene 2 Suppose, like attorneys Belge and Armani, you conduct your own investigation. Garrow gives you instructions about where to find the hidden remains of the two girls. You find and photograph the remains, without disturbing them. In the months that follow, the father of Susan Petz, suspecting that you know more than you are saying, comes to your office and pleads with you to tell him whether his daughter is alive or dead. "Should we keep hoping and praying?" he asks. Does this change your ethical obligation? How should you respond? What are the options? Do you agree or disagree with what the lawyers did in the actual case? What do the ethical rules require or permit? What would be your own moral sense of right and wrong?
The ethical obligation does not change because your duty is to the client, not the families of the victims
In counseling a client about a federal tax return the client is about to file on his own, the lawyer advises client (who is a waiter) that he must report all tips as income. The client replies that it isn't fair to tax such receipts; that none of his friends report all tips; that none has ever been caught; and that he does not intend to report his receipt of tips as income. If the client asks what the audit rate is and what his chances are of being caught, how should the lawyer respond? What if information about the percentage of audit returns in various categories is in the public domain? Is the lawyer required to report the client's fraud to the IRS?
The lawyer should not answering questions the chances of audit, because this would be more assisting in fraud. A lawyer may give an honest opinion, and there is a difference between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. Because the client openly admitted that he would not report, the lawyer would have to withdraw from representation (Rule 1.6), but if the client took the advice without saying anything, and did not report, this would not be the lawyer's fault.
Assume you are in-house counsel to a corporation that manufactures, among other things, metal for use in a certain model of airplane. The CEO tells you, in strict confidence, that the latest business venture is a "bit risky". You ask "What do you mean?" and he replies: "Well, there is a thirty percent possibility that the metal we've developed becomes defective after repeated exposure to cold air. We lack funds for more testing, which is why we've gone ahead and sold the metal to the largest airplane manufacturers. But just so you know, I wouldn't fly in a plane of that model if I were you. How do you respond?
This is a situation where people could die or have substantial bodily harm, so this is a situation where a lawyer may break client confidentiality under Rule 1.6(b)
What about discussions about confidential matters in a public place? Is that problematic? Protection of electronically stored data and communications?
While Rule 1.6 prohibits revelation of information relating to the representation of a client except as permitted by the rules, the Restatement has a lower standard prohibiting revelation only if "there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information." Additionally, Rule 1.6(c) states "A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."
Must a lawyer take extra precautions if information is highly sensitive and requires higher security?
Yes, a lawyer is required to take special security precautions when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.
