Duty of Confidentiality

The lawyer was under an obligation to keep information relating to the representation confidential. That duty survives the termination of the attorney-client relationship. It does not matter how much time has passed.

The two different sources of law that describes the duty of confidentiality: civil procedure, ethical/ professional rules.

Purposes of the duty

Encourage the clients to tell the truth.

Work product

Defensive doctrines - typically the lawyers do not want to disclose. Investigation concept.

Rule 26(b)(3): Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Court must protect mental impressions, conclusions, opinions or legal theories of a party attorney or other representative concerning the litigation.

A-C privilege

Information is privileged if it is a (1) confidential (2) communication between a (3) attorney acting as an attorney of the client and (4) the client, (5) for the purpose of rendering legal advice, (6) that is not waived by disclosure to a third party. The privilege belongs to the client.

Lower level employees of a corporation are also considered clients. (Upjohn)

Prospective client: a lawyer who has discussions with a prospective client must keep confidential the information learned of in the consultation [MR 1.18]

Attorney-client privilege belongs to the client, and it continues after the client's death. There are only a few situations in which the attorney can decide to waive it without the client's permission, such as a situation in which it is necessary to prevent death or serious bodily harm to another [MR 1.6].

However, the MR only allows, but does not require, a lawyer to reveal information she believes necessary to prevent reasonably certain death or substantial bodily harm.

Attorney blog, advertising issue and the A-C privilege issue

The privilege was trumped by the first amendment when the opinion is in public domain and when the case is concluded.

Hypo 1

client is a university, athletic director and the president call you into the room: the athletic director has been bothered by an anonymous person: mass cheating by football players, five professors give them in advance the test questions before the exam. What should the lawyer do?

To do an Upjohn style series of interviews, to investigate the allegations, people know that everything they say will be confidential. Can athletic director ask the question? Yes, athletic director is an employee.

The other side deposes the coach, you defend the deposition:

Did you prepare the deposition? Yes

Did you prepare it with the lawyer? Yes

When? Where? Can answer these

Did the lawyer tell you what questions you can expect? - Objection, A-C privilege.

If the coach answers that question, he inadvertently waives the privilege.

The other side deposes the athletic director:

Did you conduct interviews? Yes

Take notes? Yes

Have the notes? Yes

Did you write a report based on those notes? Yes

Work product in anticipation of a lawsuit (from the other side or from professors’ lawyers), don’t have to turn over the notes.

Dual purposes that include anticipation of lawsuit is Okay.

Hypo 2

In a car, on speaker, client call you: you say, I...

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