Confidentiality Flashcards

An attorney's client is a limited liability company that is being wound down. During winding up, the attorney learns that officers committed fraud during the company's operation. Who controls the attorney-client privilege and confidentiality for the defunct entity?

Answer: The successor management, trustee, or receiver managing winding up

For entities in dissolution, the privilege and confidentiality are controlled by whoever has authority over the entity, such as a trustee, receiver, or successor in winding up.

A lawyer is asked by a journalist to confirm whether a named individual is the lawyer's client. Under the Model Rules, the attorney:

Answer: May decline to confirm or deny the existence of a representation

The existence of an attorney-client relationship can itself be confidential information under Rule 1.6, and the attorney may decline to confirm or deny it.

A client gives a lawyer documents and asks the lawyer to destroy them after the matter concludes, fearing the documents could be used against the client in future litigation. The attorney should:

Answer: Refuse to destroy documents that are potentially relevant to anticipated litigation

Destroying documents when litigation is reasonably anticipated could constitute obstruction of justice, which an attorney cannot assist with under Rule 1.2(d).

An attorney withdraws from representing a client. A subsequent attorney requests the former attorney's file. Under the Model Rules, the former attorney:

Answer: Must transfer documents the client is entitled to but may retain copies

Rule 1.16(d) requires the attorney to surrender papers and property to which the client is entitled upon termination, though the attorney may retain copies.

A law firm's paralegal overhears confidential client communications while working on the case. The paralegal later leaves to work at opposing counsel's firm. Under the Model Rules:

Answer: The new firm should screen the paralegal and the paralegal must not reveal the information

Confidentiality obligations under Rule 1.6 extend through supervisory duties to non-attorney staff, and imputed disqualification rules require screening of lateral non-attorney employees.

A lawyer's client reveals during an intake meeting that he previously confessed to an uncharged murder. The lawyer decides not to take the case. Under the Model Rules, the lawyer:

Answer: Must keep the confession confidential under Rule 1.18 as a prospective client communication

Rule 1.18 protects information disclosed by a prospective client during a consultation, even if the attorney declines representation—past crimes are not within any disclosure exception.

A lawyer is defending a client charged with drunk driving. The client tells the lawyer she has driven drunk many times before without being caught. The lawyer:

Answer: Must keep this information confidential as it relates to the representation

Confidential information about past conduct—even repeated illegal conduct—does not fall within Rule 1.6's exceptions, which address future harm not past crimes.