A lawyer must disclose a material fact to avoid assisting a criminal or fraudulent act, unless prohibited by MR 1.6 (Confidentiality) Required to withdraw, and take additional steps Potentially disaffirming an opinion, document, or like to avoid assisting in crime or fraud client’s withdraw and disaffirm any work done on “I his behalf” MR amendments on technology and confidentiality Lawyer shall make reasonable efforts to avoid inadvertent or unauthorized disclosure of or access to confidential information Usually any special security measures, just reasonable doesn’t require steps Clawback agreements for discovery To maintain competence, a lawyer must keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology duty with respect to inadvertently disclosed information, specifically Lawyer’s misaddressed emails, inadvertently produced information, and metadata CRPC: Lawyer shall not reveal information (client confidences and secrets) without informed consent of a client, unless an exception applies Exceptions: Lawyer may reveal confidential information relating to the representation of a client to the extent reasonably necessary to prevent a criminal act reasonably certain to result in death or substantial bodily harm to an individual Also, under common law, can reveal confidential information to: Establish a fee Establish a defense of accused of wrongdoing or misconduct Before revealing, Duty to Counsel Try to persuade client not to commit act Inform client of intent to reveal information Atty-client privilege Ethical duty of confidentiality Work-product doctrine Protects against compelled MR: Lawyers must keep client Only protects tangible things, disclosure by subpoena or confidences and secrets unless created in anticipation of contempt in a fact-finding client gives informed consent, litigation (not in the ordinary proceeding implied authority, or an course of business) exception applies Protects confidential By or for a party, counsel, or at communications between atty Protects disclosure regarding counsel’s direction and client representation in any setting Protects against discovery of Protects confidential the document, not the Protects only disclosure of info communications, AND info information itself (not use of info) regarding client obtained by 1. Pure/opinion work product lawyer from other sources has mental impressions of Protect disclosure AND use of attorney protected from – client info disclosure unless waived 2. Everything else subject to – balancing test (need for material, inability to obtain by other means, etc) Rico v. Mitsubishi Motors Attorney inadvertently gave opposing counsel his notes from a strategy meeting
A lawyer must disclose a material fact to avoid assisting a criminal or fraudulent act, unless prohibited by MR 1.6 (Confidentiality) Required to withdraw, and take additional steps Potentially disaffirming an opinion, document, or like to avoid assisting in client’s crime or fraud “I withdraw and disaffirm any work done on his behalf” MR amendments on technology and confidentiality Lawyer shall make reasonable efforts to avoid inadvertent or unauthorized disclosure of or access to confidential information Usually doesn’t require any special security measures, just reasonable steps Clawback agreements for discovery To maintain competence, a lawyer must keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology Lawyer’s duty with respect to inadvertently disclosed information, specifically misaddressed emails, inadvertently produced information, and metadata CRPC: Lawyer shall not reveal information (client confidences and secrets) without informed consent of a client, unless an exception applies Exceptions: Lawyer may reveal confidential information relating to the representation of a client to the extent reasonably necessary to prevent a criminal act reasonably certain to result in death or substantial bodily harm to an individual Also, under common law, can reveal confidential information to: Establish a fee Establish a defense of accused of wrongdoing or misconduct Before revealing, Duty to Counsel Try to persuade client not to commit act Inform client of intent to reveal information Atty-client privilege Protects against compelled disclosure by subpoena or contempt in a fact-finding proceeding Protects confidential communications between atty and client Protects only disclosure of info (not use of info) Ethical duty of confidentiality MR: Lawyers must keep client confidences and secrets unless client gives informed consent, implied authority, or an exception applies Protects disclosure regarding representation in any setting Protects confidential communications, AND info regarding client obtained by lawyer from other sources Protect disclosure AND use of client info Work-product doctrine Only protects tangible things, created in anticipation of litigation (not in the ordinary course of business) By or for a party, counsel, or at counsel’s direction Protects against discovery of the document, not the information itself 1. Pure/opinion work product has mental impressions of attorney – protected from disclosure unless waived 2. Everything else – subject to balancing test (need for material, inability to obtain by other means, etc) Rico v. Mitsubishi Motors Attorney inadvertently gave opposing counsel his notes from a strategy meeting
Ethical-Lawyering-Dudovitz-2014.docx