What are sources of
• Constitutional law
• Disciplinary rules
• Fiduciary responsibility
• Court rules
• Statutes & Admin. Regs.
• Court orders
• Contract provisions
To whom does an attorney owe
• Those whom you
agree to represent
• Those who
they are clients
• Those you are
How can the duty be breached?
Remedies for violation
• Exclusion of evidence or testimony
• Damages action for clients
• Professional discipline by state or federal
• Disqualification of attorney
• Market sanctions (get fired, don’t get paid,
don’t get trusted)
Attorney shall not use
to the representation
Court shall not
compel evidence of
A kindred spirit… Work Product
• Fed. R. Civ. P. 26(b)(3) "documents and
tangible things * * * prepared in
anticipation of litigation or for trial."
• Fed. R. Crim. Pro. 16(b)
• Discovery protection, not an evidentiary
• PRIVILEGE -
• Not discoverable even if special
need for the material
• WORK PRODUCT –
• can be discovered upon a showing
of substantial need, at least if it
does not reveal the mental
impressions of the party's attorney
or other representative
• PRIVILEGE applies only to confidential
communications between attorneys
and their clients or their
• WORK PRODUCT applies to any
material prepared in anticipation of
litigation -- an attorney need not be
involved for the work product exception
to take effect.
• PRIVILEGE applies to any
confidential communications to an
attorney when an individual seeks
legal advice or services, whether or
not litigation is expected.
• WORK PRODUCT applies only to
material prepared when litigation is
• Only the client has the right to
(though attorney may have the
power to waive)
• An attorney may choose to waive
When does the duty of confidentiality
When does the privilege attach?
• Does the duty or the
privilege last beyond
the death of the
• If so, who “inherits”
EXCEPTIONS TO THE RULES
Balancing interests and providing
room for attorney ethical
Policies for Exceptions
• Client ownership of information
• Protection of the Attorney’s interests
• Protection of the interests of the public
• Counterbalancing a duty of candor
• Subordinating to the law
NON-exception #1 – “Everybody
• Attorneys sometimes say that information that is
“generally known” or “in public records” is not
• It’s obviously not privileged (not “in confidence”)
• But no exception like this in rules of conduct for
current clients (see Rule 1.9 for possible
exception for past clients)
• Restatement implies an exception, but that is
NON-exception #2 – “Speaking
• Attorneys sometimes believe that they can talk
all they want about a case, so long as they
speak in “hypothetical” terms.
• Only partially true – see comment 4 to Rule 1.6:
"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
Exception #1 implied
• Yes, if “impliedly
authorized in order
Secrets to carry out the
• Restatement : “that
Exception #2: Client express
• Should it be oral
• Can it be a
• Are there limits
on your ability to
ask for consent?
Consent v. Waiver
• When we speak of privilege, we often speak of
“waiver” rather than consent
• Client owns the privilege.
• Client has the right to assert or waive.
• But attorney is client’s agent; so can assert or
waive for client.
• In absence of client direction, attorney should
protect against destroying privilege.
What waives privilege?
• Disclosure outside the privileged
– E.g., conversations with a non-essential third
– Placing the subject matter in issue.
– Introduction of evidence
– Failing to assert the privilege
• Cf. joint representations
The Errant Fax
• What obligations does
an attorney have to
confidentiality of an
• See Rule 4.4
Exception #3 – To protect the
interests of attorneys
When can you use client
information for yourself?
• If client consents (& it’s reasonable)
• To secure legal advice for yourself
• If reasonably believe disclosure is
– Collect a fee or sue your client
– Defend against a charge of misconduct
• If reasonably believe
disclosure is necessary
to collect a fee or sue
• What are the limits to fee
Defending against wrongdoing
• Defend against a
charge of attorney
• What is a charge?
• How much can be
• To whom?
The SEC Investigation:
• a. Divulge client confidences as
necessary to defend yourself?
• b. Wait until you are actually
charged with fraud
• c. Protect confidences unless
the client is willing to consent to
(Swift, Currie, McGhee & Hiers v. Henry)
• Attorney (Missouri, minority view)
– Work product analysis
– Distinguishes Work product v. End
• Client (majority view)
– Unless in anticipation of litigation with
– Other good cause to refuse disclosure
Confidences as a Sword
• Can an attorney use confidential &
privileged materials in order to bring a
wrongful discharge claim?
Exception #4: To comply with law
or court order
• First, assert privilege?
• If ordered, obey
• Needn’t go to jail for
• How far can
legislation go to
Can you disclose client
• Jurisdictions are split.
• What type of wrong?
• What harm?
• Past or future?
• Attorney’s role?
A dangerous client
• Client reveals intent to hurt another
• When do you “know”
• Is it a “criminal act”
• Will it result in imminent bodily harm?
15. Does the privilege protect
• Crime-fraud exception is broader than
exceptions to confidentiality
18. What if your services have
been used for fraud?
• Can’t disclose in most jurisdictions
• May withdraw
• May “raise the red flag” (I.e. disclaim any
19. What about client perjury?
• Don’t encourage
• Don’t allow
• Remonstrate with client if occurs
• Disclose if that will rectify the perjury
20. What question do you