Lawyer must act competently to safeguard confidential info from inadvertent/unauthorized disclosure by lawyer AND others under lawyer’s supervision (i.e. subordinate lawyer, paralegal, secretary) [MR 1.6 C.16] More leeway w/ transmission of confidential communications (i.e. email), required to take only reasonable precautions, NOT special security measures (i.e. computer getting hacked)… BUT, particularly sensitive info may increase degree of reasonableness … [MR 1.6 C.17] Recipient of accidentally-transmitted confidential info (who knows OR reasonably should know that info IS confidential, was inadvertently sent) shall promptly notify sender [MR 4.4(b)] Steps to be taken after notification (i.e. returning of document(s), court order preventing recipient from using info) depend on local rules ONLY applies to inadvertent transmission/receipt (NOT “whistle blowers”) Fraudulent Claims and Confidentiality Again, lawyer NOT required to disclose confidential info (NOT violating any rules by choosing not to)… BUT, should seek to persuade client to take suitable action to obviate the … need for disclosure, AND disclose more than necessary [MR 1.6 shouldn’t C.14] Factors for lawyer to consider [MR 1.6 C.15]… Nature of relationship w/ client, others who might be lawyer’s injured by client own involvement in the transaction Lawyer’s Continuing to represent fraudulent client… Lawyer withdraw if client has used services to commit may past lawyer’s crime/fraud [MR 1.16(b)] Lawyer withdraw if continued representation will violate ethical rules must (ongoing crime/fraud) [MR 1.16(a)] CONFLICTS OF INTEREST: THIRD PARTIES Lawyer shall NOT represent a client if involving a of “concurrent conflict (potential OR actual) [MR 1.7(a)/CRPC 3-310(C)] interest” A concurrent conflict of interest exists if there is a significant risk that representation of one client will be materially limited by lawyer’s responsibilities to another/former client OR third person [MR 1.7(a)(2)] examples…
Lawyer must act competently to safeguard confidential info from inadvertent/unauthorized disclosure by lawyer AND others under lawyer’s supervision (i.e. subordinate lawyer, paralegal, secretary) [MR 1.6 C.16] More leeway w/ transmission of confidential communications (i.e. email), required to take only reasonable precautions, NOT special security measures (i.e. computer getting hacked)… … BUT, particularly sensitive info may increase degree of reasonableness [MR 1.6 C.17] Recipient of accidentally-transmitted confidential info (who knows OR reasonably should know that info IS confidential, was inadvertently sent) shall promptly notify sender [MR 4.4(b)] Steps to be taken after notification (i.e. returning of document(s), court order preventing recipient from using info) depend on local rules ONLY applies to inadvertent transmission/receipt (NOT “whistle blowers”) Fraudulent Claims and Confidentiality Again, lawyer NOT required to disclose confidential info (NOT violating any rules by choosing not to)… … BUT, should seek to persuade client to take suitable action to obviate the need for disclosure, AND shouldn’t disclose more than necessary [MR 1.6 C.14] Factors for lawyer to consider [MR 1.6 C.15]… Nature of lawyer’s relationship w/ client, others who might be injured by client Lawyer’s own involvement in the transaction Continuing to represent fraudulent client… Lawyer may withdraw if client has used lawyer’s services to commit past crime/fraud [MR 1.16(b)] Lawyer must withdraw if continued representation will violate ethical rules (ongoing crime/fraud) [MR 1.16(a)] CONFLICTS OF INTEREST: THIRD PARTIES Lawyer shall NOT represent a client if involving a “concurrent conflict of interest” (potential OR actual) [MR 1.7(a)/CRPC 3-310(C)] A concurrent conflict of interest exists if there is a significant risk that representation of one client will be materially limited by lawyer’s responsibilities to another/former client OR third person [MR 1.7(a)(2)] examples…
Ethical-Lawyering_Dant-Fall-2008.docx