The distinction between Attorney-Client Privilege and the Duty of Confidentiality is one of the items you must certainly consider for the MPRE.
Privilege of Attorney-Client vs. Obligation of Confidentiality on the MPRE
Attorney-Privilege Client
You can not necessarily find a guideline for attorney-client privilege if you study the Model Rules of Professional Conduct. The right of the attorney-client is an evidentiary rule that prohibits a court from using its authority to force confidential correspondence between an attorney and a client to be released.
Takeaways of importance:
It is a law of proof that refers to the environment of the court (or litigation)
Refers only to correspondence between the solicitor and the client (i.e. conversations)
The right applies to private correspondence only. That means, if someone else is present while a conversation is being held between the lawyer and the client, it is normally not private and thus not protected by the privilege! The client retains the right (and, thus, only the client may waive it) and the privilege lasts forever, even after the termination of the partnership between the attorney and client, or the client’s death!
Confidentiality Duty
The responsibility of confidentiality is protected by Professional Conduct Model Rule 1.6. Under this provision, a lawyer shall not disclose confidential information relating to the client’s representation unless the client gives informed consent, the disclosure of confidential information is implicitly allowed for the purpose of the representation, or the disclosure of confidential information is authorized by an exception to the obligation of confidentiality.
Takeaways of importance:
This obligation extends to Any details about the client that the attorney has. Relations between the solicitor and the client are not limited to this.
In Both scenarios it occurs, not just the environment of the court or litigation.
The obligation of confidentiality still lasts forever, like the attorney-client privilege, surviving both the dissolution of the attorney-client partnership and the death of the client!
What is wider: the confidentiality obligation or the right of the attorney-client?
The confidentiality requirement is far wider than the right of the attorney-client. As mentioned above, ALL information that the attorney has about the client is subject to the obligation of confidentiality; it is not restricted to communications between the attorney and the client. In addition, all settings, not just settings in which the rules of proof apply, are subject to the obligation of confidentiality.
Here is a diagram illustrating the relationship between the right of the attorney-customer and the confidentiality obligation:
In other words, the requirement of confidentiality also includes all that is protected by the attorney-customer right!
The Exceptions
It is also necessary to consider the exceptions, in addition to being familiar with the rules. There are four attorney-client privilege exceptions and six confidentiality requirement exceptions. Both the attorney-client privilege and the obligation of confidentiality apply to two of the exceptions!
The attorney-client privilege exceptions:
The right would not extend if the client requires the assistance of the counsel to engage in or help in a potential crime or fraud. (NOTE: this is an exception to the confidentiality requirement as well.)
The privilege does not extend to correspondence relating to the question of the violation of duties resulting from the relationship between the attorney and the client, either by the attorney or by the client. (NOTE: this is an exception to the confidentiality requirement as well.)
In civil proceedings between two people who were previously joint clients of the solicitor, the right does not extend.
The privilege does not extend when the solicitor is able to offer proof of the competence or intention of a client who, by will or during his lifetime, gives or attempts to give land.
Exceptions to the responsibility of secrecy
Otherwise, the attorney could disclose confidential information in order to avoid a reasonably likely death or serious bodily harm.
The attorney may otherwise disclose confidential information in order to prevent the client from committing a crime or fraud that is fairly likely to cause significant harm to the financial interests or property of another person and to the client’s use or use of the services of the attorney. (NOTE: this is also an exception to the right of attorney-client.)
The attorney may otherwise disclose confidential information in order to obtain legal advice about the compliance of the lawyer with the MRPC.
The attorney may otherwise disclose confidential information to establish a claim or defense on behalf of the attorney in a dispute between the attorney and the client, to establish a criminal complaint or civil claim against the attorney based on the actions in which the client was involved, or to respond to claims in any proceeding relating to the client’s representation by the attorney. (NOTE: this is also an exception to the right of attorney-client.)
- The attorney can, in order to comply with a law or court order, disclose otherwise confidential information.
- Otherwise, the attorney may disclose confidential information in order to detect and resolve conflicts of interest arising from the change of employment of the lawyer or from changes in the composition or ownership of the firm, but only if the information disclosed does not compromise the privilege of the attorney-client or otherwise prejudice the client.