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Attorney-Client confidentiality

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Exploring the Rule of Confidentiality

What Information is Confidential? 

Legal ethical rules require that an attorney keep all information relating to a client confidential.  This is done to make sure that a client is truthful with the attorney and does not keep secrets.  ABA Rule 1.6(a) restricts an attorney from revealing any information related to the representation of a client without the written informed consent of the client and where the disclosure of confidential information is necessary to the representation of the client. Under this rule, essentially all client information in confidential such as name or any other biographical information or details of family, service, bank, medical and service records, medical history or personal care issues, incoming and outgoing mail, phone conversations and email, and any reports, assessments or other information obtained in the representation of the client.  The requirement extends to all conversations even those you may have with a family member, a friend, or peer. This rule extends to all employees of the attorney and firm.  

Exception to Rule of Confidentiality

There are some exceptions to the rule of confidentiality. ABA Rule 1.6(b) contains certain exceptions where written implied consent is not necessary but in all exceptions you may only relate the information that is necessary.  An attorney may reveal confidential information to the extent the attorney believe it is reasonably necessary to avoid death or serious self-harm.  This may occur where your client has indicated that they would like to commit suicide the attorney may share this information with mental health official or family members to the client. Information may be disclosed to prevent harm to a child or vulnerable adult.  Such as in the case of divorce, if the client’s attorney obtains information that the child of the marriage is being abused the attorney may provide this information to the judge, the other parent, or a social worker to stop or prevent abuse. Finally, if an attorney becomes aware of that the client may commit a crime in the future, the attorney may not only disclose that information of an officer of the law but has an actual duty to do so. It is important to emphasize that information that has become public information it is still considered confidential information under ABA Rule 1.6.  An example of information related to the representation is a complaint, a legal document filed with the court and available to the public, that sets forth the client’s identity, cause of action, injury, and remedy or when an attorney appears on camera with a client. 

Confidentiality v. Privileged Information

Many of you are somewhat familiar with the attorney-client privilege, it is an evidentiary rule that prohibits using attorney-client communications against the client. The ABA Rule and privilege both work to protect the same information.  Both work to ensure that the client is forth coming and honest with the attorney.  The crux of the difference is that the ABA Rules creates a duty for the attorney, which if violated can result in disciplinary action, and the privilege creates a right held by the client, violation of which may result in charges being dropped or a mistrial(case must be retried). Like the ABA Rule, the privilege does not extend to information relating to a future crime or tort and the right can be waived by a client.

 

Instructions:

You have been asked to speak at a professional development seminar on the topic of attorney-clients confidentiality.  You have been asked to develop a PowerPoint presentation explaining ABA

Rule 1.6. In addition, examine exceptions to the rule and rule of confidentiality vs. attorney-client privilege. Please provide examples or hypotheticals to facilitate your discussion. 

Be sure your presentation addresses the following: 

1. Explain and examine attorney-client confidentiality and attorney-client privilege.

2. Review exceptions to the rule of confidentiality.

3. Identify the differences between the rule of confidentiality and attorney-client privilege.

4. Examine the rules of your state relating to confidential communications. 

Incorporate appropriate animations, transitions, and graphics as well as speaker notes for each slide. The speaker notes may be comprised of brief paragraphs or bulleted lists. Support your presentation with at least 6 legal resources.  In addition, provide at least one example for each slide. To do this, you may use examples from your workplace or create a hypothetical situation to illustrate the practical application of the issues discussed. 

Length: 8-10 slides (with a separate slide for resources). Save the file as PPT with the correct course code information. 

 

Books and resources :

Ethics for the legal professional 8th edition

 

NORDSTROM V. RYAN: INMATE’S LEGAL CORRESPONDENCE BETWEEN HIS OR HER ATTORNEY IS STILL CONSTITUTIONALLY PROTECTED.

Author- ONTIVEROS, CHRISTINA1

Source- Golden Gate University Law Review; Jan2018, Vol. 48 Issue 1, p99-109, 11p

 

Time to Evolve the Attorney-Client Privilege to Protect Communications Stored Electronically.

Author- CITRO, VINCENT A.

Source- Federal Lawyer; Jun2017, Vol. 64 Issue 5, p40-45, 6p

 

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