LEGAL ETHICS NEW OUTLINE – FROM BRARBI STUDY AIDS
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I’ll start from pag. 46 CLIENT CONFIDENTIALITY
RULE 1.6
III. CLIENT CONFIDENTIALITY
A.
As a general rule, a lawyer must not reveal any information relating to the representation of a
client. A lawyer may, however, reveal such information if the clients gives:
1. INFORMED CONSENT
2. IF THE DISCLOSURE IS IMPLIEDLY AUTHORIZED TO CARRY OUT THE REPRESENTATION
The rationale of the ethical duty is that it encourages the client to seek early legal advice and helps the
lawyer discover all the information relevant to the client’s problem.
B. RELATIONSHIP BETWEEN THE ETHICAL DUTY OF CONFIDENTIALITY AND ATTORNEY CLIENT
PRIVILEGE
1. Compulsion v. Gossip
a. The attorney client privilege is an exclusionary rule of evidence law. It prevents a court,
from using the twin powers of subpoena and contempt to compel he revelation of
confidential communications between an attorney and a client.
b. Instead the ethical duty of confidentiality prohibits an attorney from voluntarily revealing
information relating to the representation of the client.
2. DUTY COVERED RULE 1.6
a. The ethical duty of confidentiality covers more kinds of information than the client-attorney
privilege. The ethical duty covers not only confidential communications but also any other
information that the attorney obtains relating to the representation of the client, no matter
what the source of the information is.The ethical duty applies to ALL INFORMATION that
relates to the representation of the client, regardless of whether it is privileged, whether
the client asked for it to be kept in confidence and whether revealing it might harm or
embarrass the client.
b. The client attorney privilege protects only CONFIDENTIAL COMMUNICATIONS between the
attorney and client.
3. DISCLOSURE V. USE RULE 1.8
a. The attorney client privilege concerns only the disclosure of information.
b. The ethical duty of confidentiality instead concerns both the disclosure and use of
information.
An attorney can be disciplined for disclosing a client’s confidential information without the client’s informed
consent or for using confidential information to the disadvantage of a client, former client or prospective
client without the client’s informed consent.
C. SUMMARY OF ATTORNEY CLIENT RPIVILEGE
1. Basic Rule The attorney client privilege prohibits a court or other governmental tribunal from
compelling the revelation of confidential communications between an attorney and a client if
the subject of the communications concerns the professional relationship between the attorney
and the client.
2. CLIENT means a person or entity that seeks legal services from an attorney. Remember the
principles covers preliminary communications leading to an attorney client relationship.
3. ATTORNEY  a person who is authorized to practice law in any state or nation
4. COMMUNICATION it covers information passed from the client to the attorney and from the
attorney to the client. It also covers information from his agents.
5. CONFIDENTIAL DEFINED
To be covered by the attorney client privilege, a communication must be confidential, it must have been
made by a means not intended to disclose the communicated information to outsiders, and the
communicating person must reasonably believe that no outsider will hear the contents of the statement.
6. CLIENT IS HOLDER OF THE PRIVILEGE!
The attorney client privilege exists for the benefit of the client, not for the benefit of the
attorney. The client IS THE HOLDER OF THE PRIVILEGE , HE SI THE ONE THAT CAN CLAIM OR
WAIVE THE PRIVILEGE.
7. DURATION OF PRIVILEGE The privilege continues INDEFINITELY. Termination of the
relationship even for cause, does not terminate the privilege. THE PRIVILEGE EVEN SURVIVES
THE DEATH OF THE CLIENT.
8. EXCEPTIONS TO PRIVILEGE
Modern evidence law provides several exceptions to the attorney client privilege.
a. The privilege does not apply if the client seeks the attorney’s services to engage in or assist
a future crime or fraud (Restatement §82)
b. The communications do not apply to a communication that is relevant to an issue of breach
of the duties arising out of the client attorney relationship
c. The privilege does not apply in civil litigation between two persons who were formerly the
joint clients of the attorney.
d. The privilege does not apply in a variety of situations in which the attorney can furnish
evidence about competency or intention of a client who attempted to dispose property by
will or inter vivos transfer.
D. ETHICAL DUTY OF CONFIDENTIALITY AND ITS EXCEPTIONS
The ethical duty of confidentiality applies in every context in which the attorney client privilege does not
apply.
THE ETHICAL DUTY NOT ONLY CONCERNS THE DISCLOSURE OF INFORMATION , BUT ALSO THE USE OF
INFORMATION TO THE DISADVANATGE OF A CLIENT.
1. DUTY NOT DESTROYED BU PRESENCE OF THIRD PARTY
2. EXCEPTIONS TO THE DUTY OF CONFIDENTIALITY
RULE 1.6
RULE 1.0
a.
b.
c.
d.
e.
f.
g.
CLIENT’S INFORMED CONSENT
IMPLIED AUTHORITY
DISCLOSURE TO PREVENT DEATH OR SUBSTANCIAL BODY HARM  RULE 1.6
DISCLOSURE TO PREVENT OR MITIGATE SUBSTANTIAL FINANCIAL HARM
DISPUTE CONCERNING ATTORNEY’S CONDUCT
DISCLOSURE TO OBTAIN LEGAL ADVICE
DISCLOSURE TO DETECT AND RESOLVE CONFLICTS OF INTEREST
h. DISCLOSURE REQUIRED BY LAW OR COURT ORDER
IV. CONFLICT OF INTEREST
THE GENERAL RULES CONCERNING CONFLICTS OF INTERESTS
Loyalty is an essential element in the relationship between a lawyer and a client. The lawyer’s professional
judgement must be exercised solely for the benefit of the client, free of compromising influences and
loyalties.
ABSENT THE NECESSARY INFORMED CONSENT MUST NOT REPRESENT A CLIENT IF A CONFLICT OF
INTERESTS EXIST.
1. CONSEQUENCES OF A CONFLICT OF INTEREST
If a conflict of interest is apparent before a lawyer takes on a client’s matter, the LAWYER must not
take it on  RULE 1.7
If a conflict of interest become apparent only after the lawyer has taken on the client’s matter, and
if informed consent of the affected client will not solve the problem, then the lawyer must
withdraw.  RULE 1.18
2. IMPUTED CONFLICTS OF INTEREST
Lawyers who practice together in a firm are treated as a single unit for conflict-of-interest purposes.
THIS MEANS THAT WHEN ONE OF THE LAWYERS CANNOT TAKE ON A MATTER BECAUSE OF A
CONFLICT OF INTEREST, THE OTHER LAWYERS IN THE FIRM ARE ALSO BARRED FROM TAKING ON
THAT MATTER  RULE 1.10
THE CONFLCIT IS SAID TO BE IMPUTED FROM THE FIRST LAWYER TO THE OTHER LAWYERS.
EXCEPTION TO IMPUTED DISQUALIFICATION
1. CONFLICT BASED ON UNIQUELY PERSONAL INTEREST OF LAWYER these kind of conflicts are
not imputed to other lawyers in the firm. These conflicts are uniquely personal to the lawyer in
question.
2. SPECIFIC SITUATIONS INVOLVING LAWYER’S FOMER DEALINGS SCREENING AND NOTICE
CONFLICTS OF INTEREST:
1.
2.
3.
4.
CURRENT CLIENTS
FORMER CLIENTS
PROSPECTIVE CLIENTS
CONFLICTS RULES FOR CURRENT AND FORMER GOVERNMENT OFFICERS AND EMPLOYEES
CONFLICTS OF INTEREST – CURRENT CLIENTS
1. Concurrent conflict of interest:A lawyer must not represent a client if the representation creates a
concurrent conflict of interest. It sists in two situations:
a. he representation of one client will be directly adverse to another client
b. There is significant risk that the representation of one client will be materially limited by the
lawyer’s own interest or by the lawyer’s responsibilities to another client, a former client or
a third person
RULE 1.7
2. INFORMED CONSENT CAN SOLVE SOME CONFLICTS
A lawyer may represent a client if all the four conditions are satisfied, despite a concurrent conflict
of interest:
a. The lawyer reasonably believes that he can competently and diligently represent each affected
client  THE CONSENT RULE CREATES A REASONABLE LAWYER STANDARD
b. The representation is not prohibited by law.
c. The representation does not involve asserting a claim by one client against another client
represented by that lawyer in the same litigation.
d. Each affected clients gives informed consent.
a. CONSENT RULE MUST MEET REASONABLE LAWYER STANDARD
b. CONSENT MUST BE INFORMED only informed consent will solve a conflict. That means that the
affected client is aware of all the relevant circumstances, reasonable alternatives, and foreseeable
ways the conflict might harm her.
c. CONSENT MUST BE CONFIRMED IN WRITING A consent that is merely oral will not solve the
conflict
d. MUST NOT BE ON BOTH SIDE OF LITIGATION even if the clients consent, a lawyer must not assert
a claim on behalf of one client against another represented by that lawyer in the same litigation.
e. REVOCATION OF CONSENT THE CLIENT CAN ALWAYS REVOKE A PREVIOSULY GIVEN CONSENT.
RULE 1.7
f. CONSENT TO FUTURE CONFLICTS
3. SPECIFIC CONFLICT SITUATIONS CONCERNING “DIRECT ADVERSITY” BETWEEN CLIENTS RULE 1.7
prohibits a lawyer from representing one client whose interest are DIRECTLY ADVERSE TO ANOTHER
CLIENT, unless they give their consent
4. SPECIFIC CONFLICT SITUATIONS CONCERNING MATERIAL LIMITATION
ABA MODEL RULE 1.7 also covers a second kind of conflict, situations in which there is a SIGNIFICANT
RISK that the lawyer’s representation of a client will be MATERIALLY LIMITED by the lawyer’s own
personal interests or by the lawyer’s responsibilities to:
1. A different client
2. A former client
3. Third person
a. Representing clients in the same matter
b. Co-Parties in Civil Litigation
c. Nonlitigation Matters
RULE 1.7!--> VERY IMPORTANT FOR THIS PART
a. Handling Multiple Representation Conflicts IN BOTH LITIGATION AND NONLITIGATION
MATTERS THERE IS A FOUR STEP GUIDE FOR HANDLING THIS SITUATION:
1. The lawyer should analyse the facts of the case . If she concludes that she can effectively
represent both clients, despite their potentially conflicting interests, then she can move to
the second step.
2. The lawyer should disclose the potential conflict to each client.
3. Third the lawyer may invite their informed consent to the joint representation and confirm
such consent in writing
4. The potential conflict, eventually ripens into a present conflict, the lawyer must repeat steps
a,b,c. The lawyer must withdraw from the joint representation if a reasonable lawyer would
have to advise either of the two clients not to consent.
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Liability insurance policies :commonly provide that the insurance company will select and pay for a
lawyer to defend the policyholder in suits arising out of events covered by the policy.
CONFLICTS OF INTERESTS: SPECIFIC RULES FOR CURRENT CLIENTS RULE 1.8
1. Misuse of Client’s confidential information: a lawyer has a duty not to disclose information relating
to the representation of a client, except when an exception to the duty of confidentiality applies.
The same rule applies.
2. Business Transactions with clients and Money or Property Interests Adverse to a client
3. Proprietary interest in subject of litigation
CONFLICTS INVOLVING FORMER CLIENTS
CONFLICTS INVOLVING PROSPECTIVE CLIENTS
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I HAVE SKIPPED MORE THAN A CHAPTER
V. COMPETENCE, MALPRACTICE AND CIVIL LIABILITY
RULE 1.1.  WHEN REPRESENTING A CLIENT, A LAWYER MUST ACT COMPETENTLY, with the legal
knowledge and skill required to handle the particular matter.