Rule 1.6 -- Confidentiality/Attorney-Client Privilege/Work Product

. An attorney sometimes recorded his interviews with clients, after obtaining permission from the client, especially when the client was recounting a long narrative about events that transpired, which had given rise to litigation. The opposing party in one lawsuit sought discovery of the recording of the client's narrative of the events to the attorney. Which of the following is most likely to result in the recording being discoverable?

The client played the recording at home for his friend to get his advice and input.

An attorney had a series of private meetings with a client about the subject matter of the representation. The attorney kept careful notes of these discussions. Sometime later, an opposing party in litigation moved to compel production of these notes. Which of the following is most likely to be a reason that the attorney would try claiming that they are attorney work product, rather than asserting attorney-client privilege for these notes?

The client's friend had been present during the conversations.

The police arrested Professor Stevenson and would not permit him to communicate directly with his attorney. Professor Stevenson asked his longtime friend and confidant, Sisyphus, to convey to his attorney that the attorney should not permit the police to search Professor Stevenson's home. Later, the prosecution calls the friend to testify about the contents of the message he related from Stevenson to his attorney. The attorney claims this information is privileged. How should the court rule?

The contents of the message transmitted through the friend are privileged and therefore both undiscoverable and inadmissible at trial, because the friend was acting as an agent of the client.

A small independent soda company had a delivery truck that collided with a school bus full of children on a field trip. The company's owner and the driver, who were co-defendants in the first lawsuit over the incident, met with their litigation attorney - the owner agreed to pay the fees for representing them both. As they were discussing the accident, the attorney called in his own accident scene investigator to join the discussion, and the investigator took notes. As the litigation progressed, the driver eventually filed a cross-claim against the owner for indemnification if the driver has to pay damages to the plaintiff. At that point, the plaintiff sought to depose the attorney's accident investigator to discover what admissions the co-defendants made in the previous conversation. The owner objected. How is the court likely to rule?

The conversation comes under the protection of attorney client privilege because at the time it occurred, the driver and owner were both clients and the investigator was there to assist the attorney.

A client consulted with his attorney privately about how to wire funds to an offshore bank account legally, in a manner that would not violate tax laws or draw the attention of federal regulators. The attorney was not aware at the time that his client was engaged in illegal activity, and thought he merely wanted a secure investment. Later, however, the client became the target of a federal prosecution on corruption charges. The prosecution subpoenaed the attorney to answer questions about the conversation with the client regarding wire transfers to offshore accounts. The attorney objected that this was a privileged communication between the client and the attorney. How is the court likely to rule?

The conversation is not privileged because of the client's illegal purpose in seeking the information.

For purposes of attorney work product protection, which of the following is NOT likely to create an objectively and subjectively reasonable "anticipation" of litigation:

A client who has a history of being extraordinarily litigious

The DOJ brought an antitrust suit against Conglomerate Corporation. Giant Company separately sued Conglomerate, mostly alleging the same facts that the DOJ had alleged in its case, and Giant sought parallel relief. An attorney for Giant Company showed the DOJ lawyers some documents that constituted part of the attorney's work product in Gian Company's parallel lawsuit against Conglomerate. Giant Company and the DOJ formally agreed that the DOJ would use documents only in litigation against Conglomerate Corporation. Later, however, in the government's case, Conglomerate Corporation sought discovery of Giant Company's work product, that is, the documents that Giant's attorney had shared with the DOJ. How should the court rule on this discovery request?

Both Giant Company and the DOJ (government) may properly assert Giant's work-product protection for the documents, under the common-interest doctrine.

Prosecutors from the Department of Justice (DOJ) began an antitrust investigation into Conglomerate Corporation, and the DOJ began questioning some of Conglomerate's business customers. Conglomerate's attorney prepared a memorandum analyzing the antitrust implications of Conglomerate's standard contract form with commercial purchasers. Soon thereafter, some Conglomerate employees received subpoenas to testify before a grand jury that was investigating the same antitrust issues in their industry. The attorney worried that the grand jury would indict Conglomerate, so she interviewed the employees herself and prepared a debriefing memorandum. Would the attorney's two memoranda described above come under the protection of the work product doctrine?

Both the lawyer's memorandum analyzing the contract form and the lawyer's debriefing memorandum were prepared in anticipation of litigation, because a grand jury proceeding is itself litigation

An attorney drafted a confidential email to a client offering legal advice on a tax matter. The client had sought the attorney's legal opinion on the question. The attorney's answer relied partly on information that the client had provided, partly on information the attorney himself obtained from third parties, and partly on the attorney's own legal research. When the IRS later brought an enforcement action against the client, the government lawyers sought discovery of this email, hoping to find useful evidence about the defendant's financial activities and whether the defendant had knowingly violated the tax code. Can the government lawyers obtain the email through discovery?

Neither the attorney nor the client would have to disclose or testify about any of its contents.

An attorney represents Conglomerate Corporation. One of the company's employees died in a bizarre accident at the worksite, and Conglomerate asked the attorney to investigate the cause and the company's potential liability. As part of her investigation, the attorney wrote a letter to a physician he knew personally. The attorney's letter set out the circumstances of the employee's death and requested the physician's professional opinion as to the cause. The letter also explained that the attorney was preparing for a "possible claim" by the employee's estate for worker-compensation benefits, and potential wrongful death damages. When litigation ensued, the deceased's estate later requested a copy of the letter that the attorney sent to the physician. Must the attorney disclose the letter?

No, because the letter is non-discoverable work product.

An attorney is representing a client who is a celebrity. The attorney is confused about whether he may publicly disclose information that he learned in confidence from his client if the information is already a matter of public record, and his research indicates that there is a split of authority on this question. The attorney calls another lawyer who specializes in lawyer malpractice and disciplinary matters to seek advice. The other lawyer agrees to provide an opinion and to keep the conversation a secret. The attorney tries to use a hypothetical to explain the problem, but given the client's national reputation and celebrity status, the other lawyer knows immediately who the client is, and can easily surmise the nature of the confidential information. Is the attorney subject to discipline for disclosing confidential information about his client?

No, a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to secure legal advice about the lawyer's compliance with the rules of professional conduct, even without client authorization.

An attorney represents a client before an Administrative Law Judge in a regulatory enforcement matter. The ALJ orders the attorney to disclose whether the client was informed by counsel about the regulatory requirements in question before the violation occurred. The client forbids the attorney to answer the question. The attorney initially objects, but the ALJ insists. Could the attorney be subject to discipline for disclosing such confidential client information to the ALJ?

No, because a lawyer may comply with an order to reveal information relating to the representation of a client by a court or by another tribunal or government entity claiming authority pursuant to other law to compel the disclosure.

A client hired an attorney to represent her in a burglary charge. During a meeting with the attorney and with the understanding that any information would be confidential, the client advised the attorney about a murder she committed. A wrongfully accused man was presently on trial for that same murder. Eventually, the attorney was able to negotiate a plea deal for the client on her burglary charge. They finalized the plea deal and the attorney's representation ended. Soon after, the attorney discovered that a jury had convicted the innocent man for the murder the client had committed and confessed to the attorney. The wrongfully convicted man received a life sentence, without the possibility of parole. The attorney contacted the DA's office that handled the murder trial and left an anonymous tip stating that the client confessed to committing the murder. Was the attorney's conduct proper?

No, because attorneys cannot disclose client representation information and the death had already occurred, therefore, the disclosure would not prevent certain death or substantial bodily injury.

AN attorney is a partner in a seven lawyer firm. The client retained the attorney to handle his workers' compensation matter. Yet the attorney did not discuss with the client that he would normally disclose to the other partners of the firm some of the details about his cases and clients. At the weekly meeting of the partners, as everyone discussed their pending cases, the attorney explained the client's case and solicited input from the partners. One partner had an ingenious suggest that would have been quite helpful to the client's case. The attorney mentioned to the client in their next phone call that one of his partners had made a brilliant suggestion that could turn the case in the client's favor. The client was upset that the attorney had discussed the case with anyone else. Is the client correct that the attorney should not have discussed the case with the others at the firm?

No, because lawyers in a firm may disclose to each other information relating to a client of the firm, unless the client has instructed that certain information be available only to specified lawyers.

An attorney is a partner in a 7 lawyer firm. A client retained the attorney to discuss his workers' compensation matter. The attorney did discuss with the client that he would normally disclose to the other partners some of the details about cases and clients, and the client expressly forbade the attorney from telling anyone in his firm anything about his case. Nevertheless, at the weekly meeting of the partners, as everyone discussed their pending cases, the attorney explained the client's case and solicited input from the partners. One partner had an ingenious suggestion that was helpful to the client's case. The attorney mentioned to the client in their next phone call that one of his partners had suggested a strategy that could turn the case in the client's favor. The client was upset that the attorney had discussed the case with anyone else. Was it proper for the attorney to discussed the case with others at the firm?

No, because lawyers in a firm may not disclose to each other information relating to a client of the firm if the client has instructed that particular information be confined to specified lawyers.

A client had a confidential conversation with his attorney seeking legal advice. The client died a few weeks later. The client had pending litigation at the time of his conversation with the attorney, and the opposing party seeks disclosure of the conversation, because opposing counsel believes the client had instructed the attorney to accept the opposing party's settlement offer, up to a certain amount. The attorney is continuing the claim on behalf of the client's estate, and he refuses to settle or to disclose the contents of the conversation. Should the court compel the attorney to reveal whether the client wanted to settle the case before he died?

No, because privilege normally survives the death of the client.

Conglomerate Corporation has several offices around the state. After receiving a few employee complaints about workplace discrimination from one office, Conglomerate's corporate officers asked the company's attorney to advise them about potential liability in the matter. The attorney conducted a careful investigation and wrote a thorough memorandum summarizing her findings and legal conclusions. Because the matter involved a commonplace scenario, the attorney thought it would be helpful to give all the company's human resources managers, in each of its offices statewide, guidance about the issue, so she sent the memorandum to all sixty-two HR managers in Conglomerate's offices nationwide. When litigation eventually ensued over the alleged discrimination, the plaintiffs sought discovery of the attorney's memorandum, but Conglomerate attorney asserted attorney-client privilege. Is Conglomerate's position correct?

No, because sending the memorandum to so many employees who had no connection to the matter waived the privilege.

An attorney agreed to represent an underage client in a legal matter. The client was fifteen years old, and the youth's parents were present at the consultations and other meetings with the attorney. Would the presence of the parents during confidential communications between the attorney and the underage client waive the protection of attorney-client privilege for the conversation?

No, because the parents are there to facilitate the representation on behalf of their minor child.

While representing a client, an attorney learned confidential information about the client's previous marriage and divorce, which occurred many years before in another country. Before the attorney could conclude the matter, the client terminated the representation. Over the next three years, the now-former client became a well-known celebrity, and her prior marriage and divorce received widespread public attention in that region. Very recently, the state bar journal interviewed the attorney about his career and his greatest achievements. One question pertained to the representation of the client who became a celebrity. The attorney mentioned that at the time, the client was an unknown figure, and her previous marriage were family secrets. The interviewer was not well-informed about this celebrity and was surprised to hear that the individual had been married and divorced in another country. The former client had never authorized the attorney to discuss her legal matters, but the Model Rules provide a "generally known" exception to the duty of confidentiality of former clients. Would that exception apply to the attorney's disclosure of the marriage and divorce during the interview?

No, because the "generally known" exception does not apply to disclosures by the attorney about former clients.

An attorney had many years of experience in handling personal injury litigation, and in a certain case, the attorney represented a plaintiff in litigation over injuries sustained in a car accident. In preparation for trial, the attorney interviewed each of the eyewitnesses of the accident, and afterward wrote a memorandum summarizing what each witness said. The witnesses themselves agreed to swear and sign the statements, as if they were affidavits. The statements contained no mental impressions of the attorney, only facts communicated by the witnesses. Opposing counsel eventually learned of these interviews and sought discovery of the witness statements that the plaintiff's attorney had drafted. Unsurprisingly, the attorney objected that these documents were attorney work-product doctrine. Should the court compel the production of the witness statements?

No, because the attorney prepared the witness statements on behalf of the plaintiff in anticipation of the litigation.

The corporate officers of a large hospital were trying to decide whether to provide free HBO and Showtime (and other subscription cable channels) to all the televisions in the patient rooms. Corporate counsel participated in these meetings due to his familiarity with the pricing of these channels and what other hospitals in the area were doing in this regard. Later, the hospital finds itself in contract litigation with its cable provider, and the opposing party requests disclosure of the comments and discussion in this meeting. The hospital's corporate counsel objects that this meeting was privileged communication because of the participation of the attorney in the meeting. Is he correct?

No, because the attorney was participating as a business advisor in this meeting, not providing legal services.

A government entity provides grants to a legal aid office that represents indigent individuals. The government entity requires reporting of the names of clients, brief factual summaries, and the type of representation involved for all matters where the government entity's funds provided the financial support for the representation. This information helps ensure that the funding is going to its intended purposes. An attorney works for the legal aid office. Most of his clients are uneducated and unsophisticated, so he does not explain to them that he must disclose their information. Is it proper for the attorney to make the required disclosures to the funding agency without obtaining the clients' informed consent?

No, because the client names, basic facts, and types of cases are confidential information, and require client authorization for disclosure.

An attorney prepared the policy manuals for a corporate client, an insurance company. The manuals guide the client's claims adjusters about claims reporting procedures, such as assigning counsel, closing files, reporting bad-faith claims, maintaining records, settlement authority, and so forth. These attorney-drafted policies served the purpose of facilitating the rendition of competent claims handling by the insurer's employees. When a litigation opponent requests production of these manuals during pre-trial discovery, would they come under attorney-client privilege?

No, because the documents were not part of rendering legal advice, but rather for the employees to use in processing claims, and they were not confidential enough to create privilege.

. An attorney represented a personal injury plaintiff in a lawsuit. While trying to find potential witnesses to support the client's litigation claims and personal credibility, the attorney met with several people neighbors and friends of the client, asking about the incident that injured the client, as well as the client's character and past behavior. One of the client's neighbors told the attorney several disturbing stories about wild parties at the client's house, and disreputable character who frequently visited the home. Later, at trial, the defendant sought to compel the attorney to disclose the information conveyed by the client's neighbors. The attorney objected that this information falls under the attorney-client privilege and is therefore inadmissible. Is the attorney correct in this assertion?

No, because the information did not come from the client, and therefore attorney client privilege does not apply.

Executives at a large pharmaceutical manufacturer discovered that one of the company's foreign subsidiaries had bribed local government officials to obtain lucrative government contracts. During the internal corporate investigation of the matter, the corporation's directors asked their in-house general counsel to send written inquiries to dozens of the corporation's foreign managers about whether similar payments or bribes were occurring elsewhere. After reviewing the responses to these inquiries and following up with phone calls and meetings, the corporate directors self-reported any questionable transactions to the Internal Revenue Service (IRS). The IRS then demanded to see all the original written responses to these internal inquiries. The corporate directors and general counsel refused, claiming that the information was privileged. Should the IRS be able to compel production of these documents with a court subpoena?`

No, because the information was provided at the request of the corporate directors to the in-house attorney, and the information was work-related, and was necessary for obtaining legal advice.

A former employee is suing Conglomerate Corporation. The employee claims that Conglomerate fired him as retaliation for uncovering internal corruption at the company. While he still worked for Conglomerate, the employee had several email exchanges with Conglomerate's in-house counsel about the problems he had uncovered and the consequences for reporting them. Now that litigation has ensued after his termination, he requests production of all his email exchanges with in-house counsel (he no longer has access to the company's email server). Conglomerate's lawyers assert that these conversations are privileged, because the emails were between a Conglomerate employee and its corporate counsel. Would the emails come under the protection of attorney-client privilege, given these facts?

No, because the privilege belongs to the client, and the plaintiff here owns the privilege.

Conglomerate Corporation had an accident occur at one of its chemical manufacturing facilities - a large explosion killed several workers and injured many others. Soon after the incident, at the behest of Conglomerate's corporate managers, the general counsel obtained statements from employees and other witnesses about what happened, memorializing the statements in written form. Later, the family of an employee killed in the accident sued Conglomerate, and the plaintiffs' interrogatories included a demand for the contents of the written statements taken by the corporate general counsel. Must Conglomerate Corporation disclose the statements taken by its attorney after the accident?

No, because the statements are communications protected by the attorney-client privilege.

Conglomerate Corporation hired outside counsel to represent the organization in a lawsuit, but part way through the representation, Conglomerate's managers decided to fire the attorney and hire someone else with more experience. Conglomerate's former attorney then sued the organization for her unpaid legal fees for the representation up to that point. Conglomerate's new lawyer subpoenaed the attorney's time sheets for the billable hours he claimed to have worked for Conglomerate, because the organization believed the attorney was overbilling. The attorney claimed that the time sheets came under attorney-client privilege and refused to disclose them. Is the attorney correct?

No, documents and information about billable hours, scheduling, and so forth are not privileged.

A soda company had a delivery truck that collided with a school bus full of children on a field trip. The soda company's distribution manager wrote a report of the accident and provided it to the company's litigation counsel. The manager did not share the report with anyone except the attorney. When lawsuits from the injured children begin against the company, one of the plaintiffs requests the distribution manager's report. Will a court order the attorney or the company to produce the report during discovery?

No, it is privileged communication from a client to a lawyer.

A client was with 3 friends in a car when a police officer stopped the vehicle. During the stop, the police officer found cocaine and marijuana in the car. The prosecutor charged the client for possession of a controlled substance. The prosecutor did not charge anyone for possessing marijuana, though it was illegal to possess such a substance in the jurisdiction where the vehicle was stopped. The attorney knows the client uses marijuana. The client took a drug test at the attorney's recommendation. The drug test shows the client negative for cocaine but positive for marijuana. The attorney wants to use the drug test to show that it was unlikely that the cocaine in the car belonged to the client. Nevertheless, providing the drug test to the prosecutor would reveal that the client tested positive for marijuana and might lead to charges based on the marijuana found in the car at the time of the stop. The attorney asks his client if he can show the prosecutor the drug test as evidence that he did not use cocaine, but does not mention the risk of additional charges. The client tells the attorney he can share the results with the prosecutor. Did the attorney act properly?

No, the client must give informed consent and the attorney did not make the client aware of the risks and reasonable alternatives.

A client consults an attorney about the client's indictment for the crimes of theft and unlawful possession of stolen goods. Applicable law treats possession of stolen goods as a continuing offense. The client is still hiding the stolen items in a secret place, and the client asks the attorney about in which client can continue to hold onto the stolen goods. During the conversation, the client describes the present location of the stolen items. The prosecutor then tries to subpoena the attorney to testify about the location of the stolen goods. Would attorney-client privilege apply to the conversation if the client's crime is still ongoing?

No, the crime-fraud exception defeats attorney-client privilege for this conversation, as the crime is still ongoing.

An attorney has been practicing law for 2 years, and has represented some law school graduates in their appeals before the bar when the BLE had denied the applications for licenses on character or fitness grounds. A former law school classmate who was a first-year student when the attorney was a third-year visits the attorney in his office. The former classmate was on law review and graduated near the top of his class, but now he expresses concern about the character and fitness portion of the bar application. He asked the attorney to represent him before the BLE. The attorney asks him to explain the problem, and the classmate explains a history of heroin addiction in college, which led to a criminal conviction and a period of incarceration; but a successful rehabilitation program enabled the student to beat this addiction and live drug-free throughout law school. The classmate does not want to disclose this on the bar application. The attorney declines to represent the former student, and later receives a call from the BLE inquiring about this classmate's character and fitness. The attorney recounts everything the classmate had said about the past addiction and conviction. Was the attorney's conduct proper in this situation?

No, the former classmate was a prospective client, and the attorney owed a duty of confidentiality, even though no representation occurred.

An attorney represented Conglomerate Corporation. An officer of Conglomerate Corporation communicated in confidence with the attorney about deals between Conglomerate and one of its creditors, Big Bank. Conglomerate later declared bankruptcy, and the court appointed a in bankruptcy for Conglomerate. Then the attorney became a necessary witness in the litigation between Big Bank and Conglomerate's bankruptcy trustee. Conglomerate's trustee in bankruptcy waived privilege on behalf of Conglomerate with respect to testimony by the attorney regarding statements by the officer to the attorney. The officer, knowing that the statements would embarrass or even incriminate him, tried to prevent the attorney from testifying, claiming the conversation was a privileged communication to the corporation's attorney. Big Bank's lawyer responded that former officers and directors of a corporation cannot claim privilege after control of the corporation has passed to a bankruptcy trustee. Should the court side with the officer in this situation?

No, the officer cannot assert privilege because he was not a client of the attorney in the representation

A client confidentially delivered his own business records to his attorney, who specializes in tax matters, to obtain the attorney's legal advice about taxes. The business records were routine bookkeeping files, not prepared for obtaining legal advice. When the IRS eventually brought an enforcement action against the client and sought production of the business records that the client had provided to the attorney, the attorney asserted that attorney-client privilege protected them from disclosure. Is the attorney correct?

No, the records gain no privileged status by the fact that the client delivered them to the attorney to obtain legal advice.

A defendant accused of bank robbery hired an attorney. The attorney interviewed a bank teller, who witnessed the robbery. The attorney memorialized the conversation in a written memorandum that qualified as work product. Later, during the trial, the same teller testified for the prosecution, and the attorney cross-examined the bank teller by quoting from the teller's prior statement, as memorialized in the memorandum. The bank teller then denied making the statements. In turn, the prosecutor demanded a copy of the document from which the attorney had read statements during the cross-examination, and the attorney objected that the document was attorney work product and therefore not subject to discovery. Is the attorney correct?

No, when the attorney chose to ask the teller questions with direct reference to the memorandum, it waived work-product immunity for the portion of the memorandum discussing the teller's story, and any other parts of the document that are necessary to place all the testimony fairly into context.

An attorney had a series of private meetings with a client about incorporating the client's new business venture as an LLC. The attorney kept careful notes of these discussions. Which of the following is true regarding these notes about the conversations between the attorney and the client?

The attorney's notes would come under the protection of the attorney's duty of confidentiality but not the work product doctrine.

An attorney represented Conglomerate Corporation, and she made a confidential report to Conglomerate's CEO, describing Conglomerate's contractual relationship with Supplier Systems, a large vendor. The attorney advised the CEO that Conglomerate could terminate its contract with Supplier without facing any liability. The CEO then sent a confidential memorandum to Conglomerate's purchasing manager, explaining the parts of the attorney's advice necessary for understanding the issue at hand, and asking whether termination of the contract would nonetheless be inappropriate for business reasons. Months later, Conglomerate finds itself in litigation over a related matter, and the opposing party seeks discovery of what the attorney reported to the Conglomerate CEO regarding Supplier's contract. Conglomerate asserts attorney-client privilege for the report and its contents, but opposing counsel responds that Conglomerate waived privilege by sharing crucial aspects of the report with the purchasing manager, while asking for a business judgment. How is the court likely to rule?

The attorney's report to the CEO would remain privileged notwithstanding that CEO shared it with the purchasing manager.

An attorney represented a client in a license-revocation hearing before an administrative law judge. At one point, the government lawyer asked the client a question about a confidential communication with the client's attorney, and the attorney objected that the conversation clearly came under attorney-client privilege. The administrative law judge overruled the attorney and ordered the client to answer the question, and the client testified about the prior communications with his attorney. On appeal, the attorney claims that the ALJ wrongly overruled his objection and that privilege should in fact apply. The tribunal questioned whether privileged could reattach to a communication after its disclosure, even if the disclosure was the result of an incorrect ruling by a lower tribunal. In subsequent unrelated litigation with another party, opposing counsel seeks to introduce the client's testimony at the administrative hearing that disclosed the information, and the attorney against objects that the original communications were privileged, that he objected to the disclosure at the time, and that the administrative law judge and wrongly overruled his objection. What is the result?

The appellate tribunal is incorrect that privilege cannot reattach even if the disclosure was in response to an incorrect ruling by another tribunal, and the disclosure did not waive privilege for subsequent litigation.

An insurance company retained an attorney to defend both the insured employer and one of its employees, whose conduct is at issue and for which the employer might be vicariously liable. During a private consultation with the attorney, the employee recounts some facts about the incident that are self-incriminating. In fact, the confidential information that the employee shared with the attorney suggests that the employee was acting outside the scope of his employment at the time, and his actions were also outside the scope of the employer's insurance coverage. The employee had a reasonable belief that he had a client-lawyer relationship with the attorney, and the employee did not understand the legal implications of his admissions. In subsequent interviews with other witnesses, the attorney corroborated this information. It appeared to the attorney that the insurance company could have a contractual right to deny coverage for the employee's conduct, and the employer could invoke scope-of-employment principles to defend against its own liability to the plaintiff. What would the ethical rules require the attorney to do under these circumstances?

The attorney cannot disclose the information to anyone, and must withdraw from representing the employer, the employee, and the insurer.

An employee of Conglomerate Corporation retained an attorney to advise her about a potential claim against her employer. Like most corporate employees, this client has a cubicle workstation with a computer assigned for her exclusive use at work. Conglomerate's written internal policy states that the company has a right of access to all employees' computers and e-mail files, including those relating to personal matters. Nevertheless, all employees sometimes use their computers for personal matters, and most send some personal e-mail messages, whether from their personal or office e-mail accounts. The attorney expects that the employee will sometimes use her computer at work to communicate with the lawyer. Does the attorney have an affirmative ethical duty to warn the employee about the risks this practice entails?

The attorney has an ethical obligation to warn the client not to communicate about the matter via her work computer through any email account, and a duty to refrain from emailing the client's workplace e-mail account or responding to emails from the client's workplace email account.

Professor Stevenson was walking alone through a high-crime neighborhood late at night, carrying his briefcase, which contained copies of confidential and privileged correspondence between the Professor Stevenson and his attorney. Robbers mugged Professor Stevenson and ran off with his briefcase, which they soon discarded when they discovered that it contained no cash or valuables. The police recovered the briefcase, but to identify its owner, they opened it and read the documents. Some of the documents were very incriminating, so the police turned them over to the district attorney. Professor Stevenson and his attorney claim attorney-client privilege protects the documents from admission as evidence in any criminal proceedings, but the prosecution claims privilege disappeared when the police had a good reason to inspect the contents of a lost briefcase. Which side is correct?

The attorney is correct that privilege would still apply, and the documents are inadmissible.

An attorney represented a client who was a potential defendant in a personal injury lawsuit. The victim of the accident has threatened the client with litigation unless the client can convince the victim's lawyers that the client is not at fault. The victim also gives a deadline for producing such evidence, after which litigation will proceed. The client authorized the attorney produce a large batch of documents. The attorney reviewed the files before sending, but she overlooked one confidential memorandum by the client to the attorney that was in the batch of documents produced. This oversight occurred even though the attorney conducted a more thorough preproduction review than most lawyers would do - the attorney was not negligent, but the mistake still happened. As soon as the attorney discovered her mistake, she reasserted privilege on behalf of the client for that document. The victim's lawyer claims that the attorney waived privilege by disclosing it, even inadvertently. Which side is correct?

The attorney who made the inadvertent disclosure, without negligence, can properly reassert privilege.

A wealthy client invited his attorney to visit the client's lavish home, so that they could update the client's will and other estate planning instruments. They updated these documents every year. On this occasion, a few others were present during their conversation about the client's estate planning issues: the client's longtime business partner, the client's new girlfriend, a housekeeper, one of the client's grown children, and the client's personal physician, who had stopped by for a social visit. Two individuals would be necessary to witness the execution of an updated will, so the attorney was glad to have others present. During the conversation, as an aside, the business partner mentioned some upcoming litigation that was in the news, a lawsuit between a major insurance carrier and a pharmaceutical company related to the current epidemic in opioid abuse. No one present was a party to the anticipated litigation, but many investors were following it with great interest. Afterward, the attorney wrote personal notes about the meeting, including who was present and what each person had said. A year later, the client died, and litigation ensued over the client's estate. Which of the following would apply to the attorney's notes and mental recollections about the conversation with the client and the others that were present?

The attorney's ethical duty of confidentiality to the client.

An attorney handled the estate planning for an elderly client, which included the creation of a spendthrift trust, with the client's grandchildren as the beneficiaries. The trust document stipulated that disbursements to the beneficiaries were discretionary until they reach the age of 25. The client has now died, and the attorney who drafted the trust document for the client serves as the trustee. The beneficiaries, ages 21-23, have sued, seeking larger and more frequent disbursements from the trust. During discover, the plaintiffs request production of all documents relating to the creation of the trust and the testator's intentions about disbursements - emails and memoranda between the deceased client and the attorney. The attorney, now the trustee, claims that these communications come under the protection of attorney-client privilege. How should the court rule?

The court should compel disclosure because attorney-client privilege normally does not apply in disputes between trustees and beneficiaries.

An attorney agreed to represent a plaintiff who sustained serious injuries three months earlier when she fell through a defective staircase on the defendant's premises. Her hospitalization after the incident prevented the plaintiff from securing legal representation for twelve weeks. The attorney filed a personal injury lawsuit immediately, and the defendant retained counsel for the litigation in response. The defendant's lawyer, however, had visited the accident scene immediately after the accident and took photographs. Two weeks later, the defendant completely rebuilt the staircase, adding additional handrails, bannisters, and other safeguards. Later, as the litigation proceeded through the discovery phase, the plaintiff's attorney sought production of defense counsel's photographs of the scene, and defense counsel objected that the photographs were non-discoverable attorney work product. The attorney for the plaintiff explained in a motion to the court that the lapse of time since the accident prevented the attorney from viewing the accident scene as it was at the time, invoking the need-and-hardship doctrine. Moreover, the plaintiff's delay in securing counsel was due to her injuries and hospitalization, which were not her fault. How should the court rule?

The court should compel production of the photographs because there is no other way for the plaintiff to establish the condition of the staircase at the time of the accident.

An attorney represented a client in litigation. During the discovery phase of the matter, the opposing party sought to discover communications from a meeting that the attorney had previously organized to prepare for the case. The attorney, an accountant, certain interested creditors, and the bankruptcy liquidation committee members had all attended the meeting, as well as a few others. The attorney resisted discovery based on the work product doctrine. The opposing party countered that the presence of other parties besides the attorney, the client, and their necessary agents waived the privilege. How should the court rule?

The court should deny discovery because the work product doctrine protects the information from disclosure

An attorney agreed to represent a plaintiff who sustained serious injuries three months earlier when she fell through a defective staircase on the defendant's premises. Her hospitalization after the incident prevented the plaintiff from securing legal representation for twelve weeks. The attorney filed a personal injury lawsuit immediately, and the defendant retained counsel for the litigation in response. The defendant's lawyer visited the accident scene immediately and took photographs. By that time, the defendant had completely rebuilt the staircase, adding additional handrails, bannisters, and other safeguards. Later, as the litigation proceeded through the discovery phase, the plaintiff's attorney sought production of defense counsel's photographs of the scene, and defense counsel objected that the photographs were non-discoverable attorney work product. The attorney for the plaintiff explained in a motion to the court that the lapse of time since the accident prevented the attorney from viewing the accident scene as it was at the time, invoking the need-and-hardship doctrine. Moreover, the plaintiff's delay in securing counsel was due to her injuries and hospitalization, which were not her fault. How should the court rule?

The court should deny the motion because the photos depict a completely different staircase than the one that caused the accident, so they are no more helpful than photos the plaintiff could take now.

An attorney represented a defendant in a personal-injury action. The client made a confidential communication to the attorney concerning the circumstances of the accident. Later, in the judicial proceedings, the attorney was conducting direct examination of the client, and the client testified about the occurrence. She did not, however, make any reference in her testimony to what she told the attorney previously about the same matter. When the plaintiff's lawyer began his cross-examination of the client, he asked whether the defendant's testimony was consistent with the account she previously gave to her attorney in confidence. The defendant's attorney objects that privilege applies to this conversation, but the plaintiff's lawyer asserts that the defendant waived privilege by discussing the same things in her court testimony. Which one is correct?

The defendant's attorney is correct that his client did not waive attorney-client privilege by testifying regarding the same facts at trial.

A small independent soda company had a delivery truck that collided with a school bus full of children on a field trip. The company's owner and the driver, who were co-defendants in the first lawsuit over the incident, met with their litigation attorney - the owner agreed to pay the fees for representing both. As they were discussing the accident, the attorney called in his own accident scene investigator to join the discussion, and the investigator took notes. As the litigation progressed, the driver eventually filed a crossclaim against the owner for indemnification if the driver has to pay damages to the plaintiff. At that point, the driver sought to depose the attorney's accident investigator to have him testify about the admissions the owner made in the previous conversation. The owner objected. How is the court likely to rule?

The deposition can go forward, and the investigator's disclosures will be admissible, because the driver and the owner are now adverse parties in the litigation.

An attorney had a series of private meetings with a client about the subject matter of the representation. The attorney kept careful notes of these discussions, along with the attorney's reflections and concerns. Sometime later, an opposing party in litigation moved to compel production of these notes. Which of the following is most likely to be a reason that the attorney would assert attorney-client privilege for these notes, rather than claim they are attorney work product?

The need and hardship exception.

An attorney represented a defendant in a personal-injury action. The client made a confidential communication to the attorney concerning the circumstances of the accident. Later, in the judicial proceedings, the attorney was conducting direct examination of the client, and the client testified about the occurrence. When the plaintiff's lawyer began his cross-examination of the client, he asked whether the defendant's testimony was consistent with the account she previously gave to her attorney in confidence. The defendant declared, "I have testified exactly as I told attorney two days after this awful accident occurred. I explained to my attorney then that the skid marks made by the plaintiff's car were 200 feet long, and I have said the same things here." The plaintiff's attorney then proceeds to ask questions about the discussions with her attorney, and the defendant's attorney objected that privilege applies to this conversation. The plaintiff's lawyer insisted that the defendant waived privilege by discussing the same things in her court testimony. Which one is correct?

The plaintiff's lawyer is correct that the defendant opened the door referencing the previous privileged conversations at trial, thereby waiving privilege for the prior conversations.

An attorney had a series of private meetings with a client about the subject matter of the representation. The attorney kept careful notes of these discussions, along with some of the attorney's reflections and ideas. Sometime later, an opposing party in litigation moved to compel production of these notes. Which of the following is most likely to be a reason that the attorney would assert attorney-client privilege for these notes, rather than claim they are attorney work product?

The representation pertained to an employee manual that the attorney was drafting for the client's business.

Small Firm is considering hiring an attorney, who currently works for Big Firm, in a lateral move. The attorney is a transactional lawyer, so none of the information he possesses is "privileged" in that it was not in anticipation of litigation. To facilitate the checks for conflicts of interest, the attorney discloses to Small Firm the clients he has represented while at Big Firm. This includes the names of persons and issues involved in the matters, as well as names and issues for matters handled by other lawyers in the firm about which the attorney had overheard or otherwise acquired some confidential information. Small Firm uses the information solely for checking about potential conflicts of interest before making an offer of employment to the attorney. The attorney did not ask any of the clients for authorization to disclose the representation or the nature of the issues involved in their matters. Was it proper for the attorney to disclose this confidential information without the consent of the clients?

Yes, because the attorney disclosed the information solely to detect and resolve conflicts of interest arising from the lawyer's change of employment.

A client met with an attorney for a free consultation, and explained that she had met with two other lawyers for consultations and that she planned to hire one of the three to provide the legal services necessary to set up her professional business. The attorney needed to make a good impression on the client, so he mentioned a few prominent accountants and physicians in town whom the attorney had represented and helped with incorporating their partnerships or practice groups. These former clients had never explicitly authorized the attorney to disclose his representation of them in these matters. The client hired the attorney, and the attorney provided the legal services necessary to set up her business. Unfortunately, a dispute arose between the client and the attorney over the fees, and this fee dispute turned into litigation between the attorney and the client. In order to support his client his claims and defenses in the fee dispute, the attorney had to disclose to the tribunal exactly what he did for the client and the complexity of the issues involved, which necessarily involved the disclosure of confidential information. Was it proper for the attorney to disclose this confidential information about the client merely to prevail in a fee dispute?

Yes, a lawyer may reveal information relating to the representation to establish a claim in a fee dispute between the lawyer and the client.

The parents of an autistic child submitted a complaint to a vaccine manufacturer, claiming that its early childhood inoculation for Mumps-MeaslesRubella had caused the child's autism. The vaccine producer referred the complaint to its legal department. Its in-house counsel investigated the complaint, and eventually concluded that the matter posed no legal issues for the company, because of a federal statute that shields vaccine manufacturers from tort liability, which in turn would preempt any lawsuits in state courts. The attorney wrote a legal memorandum to the company's management describing his research and conclusions. He included in the memorandum a section about the alleged facts, and another section presenting the legal analysis. If the parents of the child later file a lawsuit anyway, would the facts that the attorney's memorandum included be discoverable, and admissible at a subsequent trial

Yes, because attorney-client privilege does not apply to underlying facts, even if those facts were under discussion in an otherwise privileged communication.

An attorney represents a client who went through a divorce several years ago in another state, and the divorce resulted in a court order for child support and spousal maintenance. The client then moved to the attorney's state, started a new career in politics, and formed new relationships. She has kept her previous marriage and divorce a secret, except from her closest friend and her attorney, because she is afraid it will affect her new career and public image. Recently, she hired her attorney to handle various legal matters for her, which included a press release about her withdrawal from a political campaign. When news media outlets posted online about the client's withdrawal from the race, the attorney responded to some of the comments that readers posted, to clear up some misunderstandings. In one of the attorney's responses, he mentioned the client's previous marriage and divorce. Did the attorney violate the duty of confidentiality?

Yes, because even disclosures of information contained in the public record must have client authorization.

In anticipation of a round of settlement negotiations over a business partnership breakup, a client authorized his lawyer to disclose that the client was having personal financial troubles, but added that the lawyer should "leave it at that—don't elaborate too much." The lawyer was to attend the settlement conference without the client. At the settlement conference, when the other parties pressed the lawyer about why his client seemed so inflexible about a settlement amount for dissolving the partnership, the lawyer said that his client was having personal financial problems. Counsel for one of the other partners asked, "Like what? Perhaps the other partners could do something to help, and it would make it easier to resolve the partnership breakup." The lawyer then explained that everyone in the room must keep the following information completely confidential, and went on to explain that his client was on the verge of bankruptcy due to a gambling problem. He also explained, in a hushed tone, that the client had even assigned his equity share in the partnership to a business rival of the partnership in order to pay off a personal loan. The others were shocked, with a mixture of sympathy for their partner's gambling problem, and alarm at the implications of their main market rival owning a significant share of the existing partnership. One of the other attorneys, however, checked the terms of the original partnership agreement, and informed the rest that equity interest in the company were unassignable without a majority vote of the other partners, making the assignment legally void. Could the lawyer be subject to discipline for the disclosure he made at the settlement conference?

Yes, because he went beyond what the client had authorized him to disclose, thus breaching his duty of confidentiality to the client.

An attorney is representing a corporate client on a variety of litigation matters. The attorney receives a subpoena for information and a document relating to one of her corporate clients. The attorney promptly produces the information and document required by the subpoena, and then informs the client. Could the attorney be subject to discipline for this action?

Yes, because she did not consult first with the client before making the disclosure.

An attorney works for a state-operated legal aid clinic, which under a state statute counts as a social service agency. The state has a mandatory reporting law for child abuse, which statutorily requires employees of social service agencies to report any instances of child abuse they discover among their clients or constituents. The attorney met with a prospective client and her child to discuss potential representation at a welfare termination hearing. The prospective client did not meet the agency's guidelines to be eligible for free legal representation, however, so the attorney had to decline the case. Nevertheless, it was evident during the interview that the prospective client's child was the subject of serious physical abuse-- a black eye, cigarette burns on her arms and neck, bruises on the backs of her legs, and a demeanor of cowering in fear around adults. The attorney wanted to talk to the mother about it, but the attorney has been unable to reach her since declining to represent her. Must the attorney report the prospective client for child abuse?

Yes, because state law requires disclosure, and a lawyer may reveal information relating to the representation of a client to the extent that the lawyer has a reasonable belief that it is necessary to comply with the other law.

An attorney uses an outside billing service to track client billing and to send bills to clients each month. The attorney submits computerized timesheets to the billing company at the end of each workday showing how much time he spent on which tasks for which clients. The billing company calculates the monthly totals and sends detailed bills to clients on the attorney's behalf. The clients are not aware that the attorney uses an outside billing service until they receive their bills. Has the attorney violated his ethical duties to his clients?

Yes, because submitting client names, time worked, and tasks involved constitutes a disclosure of confidential information for which clients must provide informed consent beforehand.

An accountant advised Professor Stevenson to consult a lawyer about a legal problem involving complex questions of tax accounting. Professor Stevenson is easily distractible, and he and does not fully understand the nature of the accounting questions, and he asks his accountant to accompany him to a consultation with his attorney so that the accountant can explain the nature of Professor Stevenson's legal matter to the attorney. The accountant helps to explain the attorney's legal advice in business or accounting terms more understandable to Professor Stevenson. Would attorney-client privilege still protect these consultations against subsequent discovery by government lawyers in a tax enforcement action against Professor Stevenson?

Yes, because the accountant is acting as the client's agent in this scenario, just as if her were a foreign language interpreter.

A customer-review website allows its users to post online reviews of lawyers whose services they have used, and there is little or no content moderation by the operators of the site. A client posted a negative review of her attorney's services that was harsh, unfair, and partly untrue. The client's negative review alleged, among other things, that her attorney had overcharged her and had unreasonably high fees in the first place. The attorney posted a response saying that the fees were in fact much lower than normal legal fees for that type of work, and that the client had never even paid her fees, and still owed the attorney a large sum. Could the attorney be subject to discipline for posting a response that included some facts about the representation, to counter the former client's lies?

Yes, because the attorney disclosed confidential information about the representation without client authorization, and a negative review online is not enough to implicate the exception for establishing a claim or defense in a controversy with the client.

A large auto dealer retains an attorney to represent him in a bankruptcy case. This attorney's firm represents a bank, through which the client has several large loans that covered loans for the dealership. The loans are all contained in the bankruptcy. The attorney is concerned about whether there is a conflict, so he contacts a lawyer friend of his. While explaining his dilemma, the attorney tells the friend the name of the dealer. Is the attorney subject to discipline?

Yes, because the attorney disclosed more than what details were necessary to accomplish his purpose.

An attorney met a small business proprietor at a social event, and the proprietor mentioned that he routinely hires lawyers for lease and contract issues. The attorney offered to provide representation for such matters in the future, and gave him his business card, and the proprietor called the next day to engage the attorney to provide these types of legal services. The new client later dropped off boxes of files with documents relating to the matters that the attorney was handling. A few weeks into the representation, the attorney noticed some serious discrepancies and legal issues while reviewing the documents in one of th eboxes, and he sent the client an email explaining that he might face regulatory fines and even criminal sanctions if the client did not resolve the matter immediately. The client sent a reply email directing the attorney to shred the entire contents of that box of files, and he did so. A year later, law enforcement officials investigated the client and sought to compel disclosure of the emails between the client and the attorney regarding the boxes of files, including the now-missing files. The attorney claimed attorney-client privilege for the private email communications he had with his client. Should a court compel production of the emails?

Yes, because the communications, though confidential, were in furtherance of committing a crime or fraud.

An attorney represented a client in a misdemeanor criminal matter involving minor vandalism. The attorney interviewed the victim, who incurred the property damage, hoping to learn more about the value of the damage and how frequently vandalism occurs in the neighborhood. The property owner explained to the attorney that the client had been demanding "protection money" from him and other business owners in the neighborhood for a long time, and that the vandalism followed his refusal to continue paying. The amount involved was substantial, and the attorney realized that the client could face much more serious charges for extortion. The attorney never discussed this with his client, and the client gladly accepted a plea bargain offer for a few months' probation on the misdemeanor vandalism charge. Several years later, the client died, and the property owner became a business-world celebrity when he published a book about how businesses transform neighborhoods. A reporter eventually found the attorney and interviewed him about the vandalism incident, several years prior, that had damaged the property owner's building at the time. The attorney explained that the incident was in fact part of a larger extortion operation and the business owner had handled the matter nobly. Should the attorney be subject to discipline for this disclosure?

Yes, because the confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

Conglomerate Corporation has several overseas facilities, and a mid-level manager at one of these locations bribed local government officials to obtain lucrative government contracts. The matter came to the attention of Conglomerate's top management and Board, who recognized that the incident was an egregious violation of the Foreign Corrupt Practices Act. An internal corporate investigation of the matter ensued, and the corporation's directors asked their inhouse General Counsel to send written inquiries to the wrongdoer's counterparts in each of its overseas branches, asking whether similar payments or bribes were occurring elsewhere. After reviewing the responses to these inquiries and following up with phone calls and meetings, the corporate directors self-reported any questionable transactions to the relevant federal agencies. When one of those agencies brought an enforcement action against Conglomerate Corporation, the Department of Justice lawyers sought discovery of all the original written responses to these internal inquiries. The corporate directors and General Counsel refused, claiming that the information was privileged. Should Conglomerate Corporation be able to resist production of these documents as privileged?

Yes, because the corporate directors requested the information from the in-house attorney, and the information was work-related, and was necessary for obtaining legal advice

An attorney represented a client, who was a defendant in a criminal prosecution. The client's trial ended in a conviction and life sentence. After all possible appeals were complete, the attorney's representation of the client ended. The attorney sent the client a letter, which the client received in prison, explaining that his representation was ending and providing a detailed accounting of all billing matters. No outstanding bills remained. Several years later, the attorney met with some former classmates at an alumni event, and they swapped stories over drinks about some of their cases over the years. The attorney mentioned the client, only by first name, and explained how the guilty verdict felt like a failure on his part even though he knew the client was guilty because the client's friends and family members had all witnessed the crime and told the attorney privately what they had seen. Could the attorney be subject to discipline for disclosing confidential client information?

Yes, because the duty of confidentiality continues after the client-lawyer relationship has terminated.

A client who spoke only Spanish hired a local attorney who spoke English and no other languages. The client used an interpreter to communicate an otherwise privileged message to the attorney. The interpreter was an acquaintance of the client. The opposing party later tried to have the interpreter testify at trial about the contents of the conversation he interpreted. The attorney objected that the information falls under the protection of attorney-client privilege. Is the attorney correct?

Yes, because the interpreter acted as an agent of the client in facilitating the provision of legal services.

An attorney heard from one of his clients in county jail that the client's cellmate did not have a lawyer, so the attorney sent a message offering to represent him, and the cellmate agreed and hired the attorney. The new client was under investigation for a variety of financial crimes, so the attorney hired a private financial forensics investigator to assess the client's potential criminal liability. This investigation, conducted at the behest of the attorney, involved the investigator interviewing the client alone for over an hour about certain bank transfers and backdated checks. Later, the prosecutor subpoenaed the private financial forensics investigator to testify at the criminal proceedings against the client, and the investigator refused to answer any questions about the conversation with the defendant. Would attorney-client privilege apply to the investigator's private conversation with the attorney's client?

Yes, because the investigator was acting as an agent of the attorney, and the conversation was a confidential communication with a client for the purpose of obtaining legal services.

Conglomerate Corporation's recent litigation has received unfavorable media attention, so the corporate directors have hired a public relations firm (Afflatus, Inc.) to handle media relations and help boost the company's image. The directors have also asked their attorney, who is handling their litigation, to meet with the Afflatus staff, explaining the company's litigation position and how to answer media inquiries without giving statements that might bind the corporation to a disadvantageous legal position. The attorney opened his presentation with a declaration that the meeting was confidential, and that some of the information shared would be privileged. A few months later, the opposing party learns that this meeting occurred and seeks discovery of the PowerPoint slides the attorney used in the presentation to the public relations firm. Given these facts, would these the slides be discoverable at trial?

Yes, because the public relations firm is not the client.

Attorney Stevenson works in-house as General Counsel for Conglomerate Corporation. Conglomerate's Chief Financial Officer (CFO) resigned suddenly. Due to his background in corporate finance and economics, Conglomerate's Board of Directors asked Attorney Stevenson to serve temporarily as the acting Chief Financial Officer, until they could find a permanent replacement to fill the position. Attorney Stevenson divided his time evenly between corporate financial operations and legal tasks for the company, such as contract review, regulatory compliance, and supervising the outside firms that handle the company's litigation. His financial responsibilities at Conglomerate included reviewing financial reports and forecasts, investment strategy proposals, and various emails or memoranda relating to the firm's financial affairs. An opposing party in antitrust litigation against the corporation seeks to compel production of some of Attorney Stevenson's financial reports and strategy proposals, but he claims these come under attorney-client privilege, as he simultaneously serves as the in-house lawyer for Conglomerate Corporation. Are the documents discoverable at trial?`

Yes, because these are business communications, not legal advice from the lawyer to the client

A client consults an attorney about the client's indictment for the crimes of theft and unlawful possession of stolen goods. Applicable law treats possession of stolen goods as a continuing offense. The client is still hiding the stolen items in a secret place, and the client asks the attorney about how the client might lawfully return the stolen items. The prosecutor then tries to subpoena the attorney to testify about conversation. Would attorney-client privilege apply to the conversation if the client's crime is still ongoing?

Yes, confidential communications about ways in which Client might lawfully return the stolen goods to their owner are privileged.

Walter White conferred confidentially with his attorney, Saul Goodman, about how to resolve a specific legal problem. Attorney Goodman suggested shredding documents and hiring some thugs to beat up the other party in the matter, leaving them with a warning to stay away from Walter White. White, the client, proceeds with this plan. Later, when White faces criminal prosecution for the assault-for-hire, the prosecutor seeks disclosure of any conversations he had with his attorney about hiring thugs to carry out the assault. Predictably, Attorney Goodman argues that the conversation comes under the protection of attorney-client privilege. Is the prosecutor correct to demand disclosure?

Yes, given these facts, the crime-fraud exception to attorney-client privilege would potentially apply.

An attorney was the managing partner at a firm. The firm had current, up-to-date network security, firewalls, password protection, anti-virus software, and email encryption. As managing partner, the attorney would revisit this issue every year in January, checking with the relevant vendors to see if there were important software updates or new products that the firm needed. One January, a vendor was installing new software and discovered that the firm had suffered a significant data breach the previous summer that went unnoticed. Hackers had used sophisticated methods to bypass conventional firewalls and other mainstream security features, and they had accessed confidential client information. The vendor explained to the managing partner that there was no reason for such events to go unnoticed, because low-cost products and services were available to monitor for data breaches. Could the firm, or at least the managing partner, be subject to discipline for failing to monitor for any breaches in data security?

Yes, lawyers must employ reasonable efforts to monitor the technology and office resources connected to the internet, external data sources, and external vendors providing services relating to data and the use of data.

A client consults an attorney about the client's indictment for the crimes of theft and unlawful possession of stolen goods. Applicable law treats possession of stolen goods as a continuing offense. The client is still hiding the stolen items in a secret place. The prosecutor then tries to subpoena the attorney to testify about the conversations with the client regarding the charges and the legal proceedings. Would attorney-client privilege apply to the conversation if the client's crime is still ongoing?

Yes, privilege covers the confidential communications between the attorney and the client regarding the indictment for theft and possession.

A client kept in his files an old memorandum that the client had prepared for his attorney during an earlier representation by the attorney. After some time, the client takes the memorandum to another lawyer, in confidence, to obtain legal services on a different matter. The memorandum qualified as a privileged communication in the earlier matter.While in the hands of the new lawyer, does the memorandum remain under the protection of privilege?

Yes, privilege still applies to the document due to its originally privileged nature.

An attorney specialized in criminal defense work, and at one point she agreed to represent a client who was multiple charges for gang-related criminal activities. While the client was in county lockup, inmates there from a rival gang assaulted him, necessitating his hospitalization. The attorney visited her client in the hospital to discuss a pending plea offer from the prosecutor. Both the client and the attorney believed, with good reason, that they were having a confidential conversation. Unbeknownst to them, however, a doctor was eavesdropping on their conversation, and the doctor subsequently contacted the prosecutor and repeated the entire conversation. Armed with this new evidence, the prosecutor revoked the pending plea offer, proceeded with the prosecution, and called the doctor to testify at trial about the conversation. The attorney argued that her conversation with her client came under attorney-client privilege and was therefore inadmissible at trial. Is the attorney correct in this assertion?

Yes, the attorney and the defendant were reasonable in believing that the conversation was confidential.

An attorney's client was a member of a drug cartel that imported and distributed illegal narcotics. The client promised the other cartel members that the client would provide anyone in the cartel with legal representation whenever the need arose. The client then offered the attorney a generous monthly retainer if the attorney would stand ready to provide legal services whenever the client or the cartel associates encountered legal difficulties during the operation of the cartel. In a confidential communication that would normally otherwise qualify as privileged, the client told the attorney the identities of the other cartel members. The client continued the cartel operations for some time after this communication. Would government lawyers, in a subsequent law enforcement action, be able to compel the attorney to disclose the identities of the other cartel members?

Yes, the crime-fraud exception renders nonprivileged the communications between the client and the attorney, including identification of the client's confederates.

An attorney agreed to represent a client who suffered from severe mental illness that had resulted in his institutionalization. The client complained that the staff mistreated her and wanted the attorney to litigate. At the end of this litigation, the court appointed a family member as the legal guardian for the client and her assets. Subsequently, a question arose concerning the client's ownership rights in certain intellectual property, and the attorney agreed to represent the interests of the client in the property. The client's legal guardian participates in the conversations between the attorney and the client, and he serves as an intermediary for confidential correspondence or messages between the client and the attorney. Would attorney-client privilege still apply to these communications, if the guardian is present or serves as an intermediary?

Yes, the legal guardian is necessary for rendering legal services to the client, and functions as the client's agent in this scenario.

The law school casebook industry was heavily consolidated. Several witnesses testified before a grand jury investigating this specialized publishing industry. Shortly afterward, an attorney for East Publishing Company debriefed the witnesses and wrote memoranda of those interviews in anticipation of the potential indictment of East Publishing, and the anticipated civil suits that could follow. Five years later, some plaintiffs representing a class of law school casebook consumers filed an antitrust class action against East Publishing and sought discovery of the non-opinion work-product portions of the attorney's debriefing memoranda. The plaintiffs were careful in preparing their case and gathering evidence through other means, and they can show that the witnesses in question were no longer able to remember some of the events to which they testified at the previous grand jury proceeding. Should a court order the attorney to produce the memorandum?

Yes, this situation falls under the need-and-hardship exception to the work product doctrine.

An attorney was a partner at Big Firm, which represented Conglomerate Corporation in their corporate merger negotiations with Giant Company. Big Firm had state-of-the-art network firewalls, virus protection, password protection, and other data security features in place. Nevertheless, one Friday evening some hackers managed to breach Big Firm's networks and access client information and partner emails, for purposes of engaging in insider trading. The firm detected the breach within a few hours and notified state and federal law enforcement. The stock exchange had closed for the weekend, and law enforcement managed to apprehend the attackers over the weekend, before they had a chance to review the stolen information and share useful data or engage in illegal stock trades. The clients suffered no losses or adverse effects, but they could have. The partners at Big Firm that they should not be subject to discipline for failure to protect their client's confidential information, because they had all the latest data security measures in place, though technology is constantly changing. Are they correct?

Yes, unauthorized access to, or disclosure of, client information does not constitute a violation of the Model Rules if the lawyer has made reasonable efforts to prevent the access or disclosure.

Which of the following is NOT one of the elements of the work product doctrine?

anticipation of litigation applies to almost any legal work performed for a client, because litigation could eventually arise over any contract, will, or property disposition