It's already February, which means that the first bar exam of 2014 is right around the corner. People frequently e-mail me and ask what topics should they concentrate on for their bar exam. This is a hard question to answer because in most cases, they should strive for mastery of every subject tested in that particular jurisdiction. A sure bet on most bar exams is a question with some component testing your knowledge of professional responsibility & ethics.
With that said, let me introduce the 'Duty of the Day' - a daily reminder of some duty an attorney owes to their client. As you will read each day's 'Duty of the Day', you will be reminded of a duty that could appear on your state's bar exam.
Without further ado, I present to you the duty of confidentiality.
Duty of Confidentiality - Overview
The duty of confidentiality is a broad term that encompasses the attorney-client privilege and an attorney's duty of confidentiality.
The attorney-client privilege permits a client to refuse to testify and prevent her attorney from testifying in court about communications relating to legal services between the client and the attorney and any agent present, such as a law clerk. The privilege lasts indefinitely, even if the attorney-client relationship ends.
There are four situations where the attorney-client privilege does not apply:
(1) Where the client seeks the attorney's services to aid/enable someone to commit a future crime/fraud
(2) The privileged communication relates to a breach of duty in the attorney-client relationship
(3) Civil litigation between former joint clients of the attorney, or
(4) The attorney has evidence of the competency or intention of a client in a matter where the client tried to dispose of property by will or inter vivos transfer
Duty of Confidentiality
The American Bar Association's Rules of Professional Conduct ("RPC") state that a lawyer generally must not reveal all information relating to representation of a client however and whenever derived. The duty applies even after the attorney-client relationship has ended.
The RPC states that a lawyer may reveal information relating to the representation of a client in the following situations:
1. The client gives informed consent;
2. The disclosure is impliedly authorized in order to carry out the representation;
3. The lawyer reasonably believes it is necessary to prevent reasonably certain death or substantial bodily harm;
4. To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial or property loss of another and the client has used or is using the lawyer's services;
5. To prevent, mitigate or rectify substantial financial or property loss of another that is reasonably certain to result or has resulted from the client's commission of a crime for which the client has used the lawyer's services;
6. To obtain legal advice about the lawyer's compliance with these ethics rules;
7. To establish a claim or defense for the attorney in a controversy between the lawyer and the client;
8. To establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
9. To respond to allegations in any proceeding concerning the lawyer's representation of the client;
10. To comply with other law or a court order; or
11. To detect and resolve conflicts of interest arising from the lawyer’s change of employment/firm composition only if the revealed information would not undermine the attorney-client privilege or prejudice the client.
Keep in mind that some states have additional requirements. For example, California provides an additional exception to the attorney-client privilege where the lawyer reasonably believes disclosure is necessary to prevent a criminal act the lawyer reasonably believes is likely to result in death or substantial bodily injury. These exceptions are covered in the bar review outlines available at www.paullawbooks.com.