BarMax MPRE Study Guide

IV. Client Confidentiality (6% to 12%) A. Duty of Confidentiality a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by one of the exceptions. The duty of confidentiality is necessary to ensure complete candor between clients and their attorneys, so as to facilitate effective legal advice. 1. Scope of Duty this duty applies to all communications related to the representation made by a client to her attorney even if the client did not request the attorney keep the information confidential or its revelation would not harm or embarrass the client. This is an ethical duty that prevents an attorney from voluntarily disclosing confidential information or using confidential information to the disadvantage of her client, former client or prospective client. ! Source of Information the source of the information is irrelevant to this duty.

2. Timing of Duty ! Before the Attorney-Client Relationship duty of confidentiality applies to all communications made by prospective clients before an attorney-client relationship is formed even if an attorney-client relationship is ultimately never formed. As such, even when no client-lawyer relationship ensues, an attorney who has learned information from a prospective client shall not use or reveal that information. After the Attorney-Client Relationship the duty applies indefinitely. This duty survives both the attorney-client relationship and death of the client.

3. Exceptions to Confidentiality a lawyer may reveal information relating to the representation of a client after informed client consent or to the extent the lawyer reasonably believes necessary: ! Informed Consent After Consultation an attorney may disclose otherwise confidential information if the client gives informed consent after consultation. o Implied Consent an attorney has implied consent to reveal whatever is necessary to carry out the representation (i.e. render competent legal services) unless the client gives specific instructions to the contrary. To Prevent Reasonably Certain Death or Substantial Bodily Harm to prevent reasonably certain death or substantial bodily harm. To Prevent Client from Committing Crime or Fraud That Will Cause Significant Financial Injury to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services. To Prevent, Mitigate or Rectify Substantial Financial Injury to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services. Distinguish from above exception, because the client has already acted in this exception. Legal Ethics Advice to secure legal advice about the lawyer's compliance with these Rules of Professional Responsibility. To Establish a Claim or Defense to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client ! "!

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BarMax MPRE Study Guide

! o Controversy between Lawyer & Client o Defense to Criminal Charge or Civil Claim o Allegations Concerning Lawyers Representation of the Client To Comply with Other Law, Final Court Order or Other Controlling Ethical Duty to comply with other law, court order or other controlling ethical duty (e.g. the duty to prevent client perjury).

4. Fruits and/or Instrumentalities of a Crime an attorney may not keep, hide or alter the fruits or instrumentalities of a crime. ! ! ! No Keeping the lawyer, however, does not have to disclose where the fruit or instrumentality of a crime came from. No Hiding No Altering

B. Duty to Prevent Client Perjury an attorney must not knowingly assist client perjury. 1. Client Will or Has Committed Perjury if the attorney knows that the client has committed perjury the attorney must comply with the following three step remedial process. If the attorney has reason to believe that the client will commit perjury, the attorney must advise the client of this three step process. (1) Urge Client to Tell Truth if the client has already committed the perjury, the attorney must urge the client to rectify the perjury. (2) Withdrawal if the client refuses, the attorney must seek to withdraw from representation. (3) Lawyer Must Disclose Perjury if withdrawal is not permitted or will not undo the effect of the false evidence, the attorney must disclose the perjury to the court as is necessary to remedy the situation, even if it reveals confidential information. 2. Special Rules for Criminal Defendants because of the special protections historically provided criminal defendants, however, the Rules do not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the clients decision to testify.

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