BOALT – LEGAL PROFESSION
FIFTH CLASS – CONFIDENTIALITY
SEPTEMBER 24, 2013
FAQ’s
All Students
Read
Model Rule 1.6;
Cal. Rule Prof’l
Conduct 3-100
All Students
Read
Outline
§ IV(F)(5); pp.
30-34
All Students
Read
5.1
Spaulding v.
Zimmerman
All Read; A-C
Discuss
5.2
Alton Logan
All Read; D-G
Discuss
5.3
Confidential?
Privileged?
All Read; H-K
discuss
5.4
Let a Smile Be
Your Umbrella
All Read: L-P
discuss
5.8
Amy A. v.
Cooper House
All Read: R-Z
discuss the
second question
(dealing with
confidentiality)
5.9
Recent
Examples from
the News
All Read; no
cold calls
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Frequently Asked Questions
(5.1): What is the attorney client privilege?
For the purposes of this semester, including the exam, assume that these are the
operative definitions of the attorney client privilege and the crime-fraud exception.
The attorney client privilege is an evidentiary concept. Here is one formulation
of the elements of the privilege. Where a communication is made in confidence
between a client (current or potential) and an attorney (or the attorney’s subordinate
agent) for the purpose of securing legal services and not for the purpose of furthering
an ongoing crime of fraud, then the communication is privileged.
Under the so-called “crime-fraud” exception, if the communication is in
furtherance of an ongoing crime or fraud, then the communication was never
privileged to begin with, even if the attorney is unaware of the client’s nefarious
purpose. United States. v. Laurins, 857 F.2d 529 (9th Cir. 1988).
(5.2): What is the duty of confidentiality?
Privilege
Confidentiality
While the privilege is an evidentiary concept, the duty of confidentiality is a
fiduciary duty running from attorney to client. The duty of confidentiality applies to
all “information relating to the representation of a client.” (MR 1.6) That’s incredibly
broad—much broader than may be intuitive to you.
Note that the duty is not limited to privileged information and is not limited to
information received from the client. Hence the scope of information covered by the
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duty of confidentiality is typically broader than the information covered by the
attorney-client privilege. Under the California formulation, for example, the duty of
confidentiality applies to any information that could be “embarrassing or detrimental
to the client.” In the Venn diagram above, privileged information is represented by a
smaller circle within the larger circle that represents the duty of confidentiality.
(5.3) Are privilege and confidentiality the same?
No, they are not. Sometimes information and communications are both
privileged and confidential, but not always. You need to do separate analyses for
each concept. Below there are some examples below that will help you work through
that.
To determine whether the duty of confidentiality applies, first consider whether
it falls into the broad definition of clients’ confidences and then analyze whether any
exceptions to the duty apply. When you analyze the exceptions, bear in mind that
when states can provide that under a given exception the attorney either “shall” or
“may” reveal the confidence. There aren’t too many states that have “shall reveal”
exceptions, but a few do.
(5.4) What is the current state of the ABA Model Rules regarding the duty of
confidentiality?
At the August 2003 convention, the ABA House of Delegates approved two
more exceptions to the duty of confidentiality; there are now six “may reveal”
exceptions within MR 1.6. Elsewhere in the Model Rules there are three “must
reveal” exceptions (3.3(a); 3.3(b); and 4.1(b)) and two “may reveal” exceptions
(1.13(c); 1.14(c)).
(5.5) What is work product protection?
We won’t cover the concept of work product protection (it is covered in
Evidence). It’s a judge-made right by which lawyers may shield their own litigationrelated work product from their opponents.
(5.6) What are the standard normative arguments about the duty of
confidentiality?
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Normative arguments often turn on the empirical question of which rule will
maximize compliance with law. Some say that a strict rule of confidentiality will
increase compliance, because clients wll trust their lawyers and share all the facts—
whereupon lawyers will be in a position to urge the client to comply with law.
(Recall that under MR 1.2(d), a lawyer shall not counsel or assist a client to commit
a crime or fraud.) Others say that adding liberal exceptions to the duty of
confidentiality will increase compliance, both because lawyers will reveal client
confidences to halt bad behavior and because lawyers can threaten their clients with
disclosure if they will not cease their bad behavior. This empirical debate is a
perennial, but neither side of the debate has marshaled much data to support its
position
That’s the basic utilitarian argument. You could also offer rights-based
arguments. For example, a rights-based argument might assert that, regardless of any
consequential calculus, clients need to have a private sphere of communication safe
from government intrusion. Those arguments are being raised, for example, in the
context of the new rules under which the Department of Justice is tape recording
conversations between terrorist suspects and their attorneys.
8.1.
Example: Spaulding v. Zimmerman
Spaulding v. Zimmerman
263 Minn. 346; 116 N.W.2d 704; 1962 Minn. LEXIS 789 (1962)
OPINIONBY: GALLAGHER
OPINION: Appeal from an order of the District Court of Douglas County
vacating and setting aside a prior order of such court dated May 8, 1957, approving
a settlement made on behalf of David Spaulding on March 5, 1957, at which time
he was a minor of the age of 20 years; and in connection therewith, vacating and
setting aside releases executed by him and his parents, a stipulation of dismissal,
an order for dismissal with prejudice, and a judgment entered pursuant thereto.
The prior action was brought against defendants by Theodore Spaulding, as father
and natural guardian of David Spaulding, for injuries sustained by David in an
automobile accident, arising out of a collision which occurred August 24, 1956,
between an automobile driven by John Zimmerman, in which David was a
passenger, and one owned by John Ledermann and driven by Florian Ledermann.
On appeal defendants contend that the court was without jurisdiction to vacate the
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settlement solely because their counsel then possessed information, unknown to
plaintiff herein, that at the time he was suffering from an aorta aneurysm which
may have resulted from the accident, because (1) no mutual mistake of fact was
involved; (2) no duty rested upon them to disclose information to plaintiff which
they could assume had been disclosed to him by his own physicians; (3)
insurance limitations as well as physical injuries formed the basis for the
settlement; and (4) plaintiff's motion to vacate the order for settlement and to set
aside the releases was barred by the limitations provided in Rule 60.02 of Rules
of Civil Procedure.
After the accident, David's injuries were diagnosed by his family physician, Dr.
James H. Cain, as a severe crushing injury of the chest with multiple rib fractures;
a severe cerebral concussion, probably with petechial hemorrhages of the brain;
and bilateral fractures of the clavicles. At Dr. Cain's suggestion, on January 3,
1957, David was examined by Dr. John F. Pohl, an orthopedic specialist, who
made X-ray studies of his chest. Dr. Pohl's detailed report of this examination
included the following:
* * * The lung fields are clear. The heart and aorta are normal."
Nothing in such report indicated the aorta aneurysm with which David was then
suffering. On March 1, 1957, at the suggestion of Dr. Pohl, David was examined
from a neurological viewpoint by Dr. Paul S. Blake, and in the report of this
examination there was no finding of the aorta aneurysm.
In the meantime, on February 22, 1957, at defendants' request, David was
examined by Dr. Hewitt Hannah, a neurologist. On February 26, 1957, the latter
reported to Messrs. Field, Arvesen & Donoho, attorneys for defendant John
Zimmerman, as follows:
"The one feature of the case which bothers me more than any other
part of the case is the fact that this boy of 20 years of age has an
aneurysm, which means a dilatation of the aorta and the arch of the
aorta. Whether this came out of this accident I cannot say with any
degree of certainty and I have discussed it with the Roentgenologist
and a couple of Internists. * * * Of course an aneurysm or dilatation
of the aorta in a boy of this age is a serious matter as far as his life.
This aneurysm may dilate further and it might rupture with further
dilatation and this would cause his death.
"It would be interesting also to know whether the X-ray of his
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lungs, taken immediately following the accident, shows this
dilatation or not. If it was not present immediately following the
accident and is now present, then we could be sure that it came out
of the accident."
Prior to the negotiations for settlement, the contents of the above report were
made known to counsel for defendants Florian and John Ledermann
The case was called for trial on March 4, 1957, at which time the respective parties
and their counsel possessed such information as to David's physical condition as
was revealed to them by their respective medical examiners as above described. It
is thus apparent that neither David nor his father, the nominal plaintiff in the prior
action, was then aware that David was suffering the aorta aneurysm but on the
contrary believed that he was recovering from the injuries sustained in the accident.
On the following day an agreement for settlement was reached wherein, in
consideration of the payment of $ 6,500, David and his father agreed to settle in full
for all claims arising out of the accident.
Richard S. Roberts, counsel for David, thereafter presented to the court a
petition for approval of the settlement, wherein David's injuries were
described as:
"* * * severe crushing of the chest, with multiple rib fractures,
severe cerebral concussion, with petechial hemorrhages of the
brain, bilateral fractures of the clavicles.
Attached to the petition were affidavits of David's physicians, Drs. James H. Cain
and Paul S. Blake, wherein they set forth the same diagnoses they had made upon
completion of their respective examinations of David as above described. At no
time was there information disclosed to the court that David was then suffering
from an aorta aneurysm which may have been the result of the accident. Based
upon the petition for settlement and such affidavits of Drs. Cain and Blake, the
court on May 8, 1957, made its order approving the settlement.
Early in 1959, David was required by the army reserve, of which he was a member,
to have a physical checkup. For this, he again engaged the services of Dr. Cain. In
this checkup, the latter discovered the aorta aneurysm. He then reexamined the Xrays which had been taken shortly after the accident and at this time discovered that
they disclosed the beginning of the process which produced the aneurysm. He
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promptly sent David to Dr. Jerome Grismer for an examination and opinion. The
latter confirmed the finding of the aorta aneurysm and recommended immediate
surgery therefor. This was performed by him at Mount Sinai Hospital in
Minneapolis on March 10, 1959.
Shortly thereafter, David, having attained his majority, instituted the present action
for additional damages due to the more serious injuries including the aorta
aneurysm which he alleges proximately resulted from the accident. As indicated
above, the prior order for settlement was vacated. In a memorandum made a part of
the order vacating the settlement, the court stated:
"The facts material to a determination of the motion are without
substantial dispute. The only disputed facts appear to be whether *
* * Mr. Roberts, former counsel for plaintiff, discussed plaintiff's
injuries with Mr. Arvesen, counsel for defendant Zimmerman,
immediately before the settlement agreement, and, further, whether
or not there is a causal relationship between the accident and the
aneurysm.
"Contrary to the * * * suggestion in the affidavit of Mr. Roberts
that he discussed the minor's injuries with Mr. Arvesen, the Court
finds that no such discussion of the specific injuries claimed
occurred prior to the settlement agreement on March 5, 1957.
"* * * the Court finds that although the aneurysm now existing is
causally related to the accident, such finding is for the purpose of
the motions only and is based solely upon the opinion expressed by
Dr. Cain (Exhibit 'F'), which, so far as the Court can find from the
numerous affidavits and statements of fact by counsel, stands
without dispute.
"The mistake concerning the existence of the aneurysm was not
mutual. For reasons which do not appear, plaintiff's doctor failed
to ascertain its existence. By reason of the failure of plaintiff's
counsel to use available rules of discovery, plaintiff's doctor and
all his representatives did not learn that defendants and their
agents knew of its existence and possible serious consequences.
Except for the character of the concealment in the light of
plaintiff's minority, the Court would, I believe, be justified in
denying plaintiff's motion to vacate, leaving him to whatever
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questionable remedy he may have against his doctor and against
his lawyer.
"That defendants' counsel concealed the knowledge they had is not
disputed. The essence of the application of the above rule is the
character of the concealment. Was it done under circumstances that
defendants must be charged with knowledge that plaintiff did not
know of the injury? If so, an enriching advantage was gained for
defendants at plaintiff's expense. There is no doubt of the good faith
of both defendants' counsel. There is no doubt that during the course
of the negotiations, when the parties were in an adversary
relationship, no rule required or duty rested upon defendants or their
representatives to disclose this knowledge. However, once the
agreement to settle was reached, it is difficult to characterize the
parties' relationship as adverse. At this point all parties were
interested in securing Court approval. * * *
"But it is not possible to escape the inference that defendants'
representatives knew, or must be here charged with knowing, that
plaintiff under all the circumstances would not accept the sum of
$6,500.00 if he or his representatives knew of the aneurysm and its
possible serious consequences. Moreover, there is no showing by
defendants that would support an inference that plaintiff and his
representatives knew of the existence of the aneurysm but
concluded that it was not causally related to the accident.
"When the adversary nature of the negotiations concluded in a
settlement, the procedure took on the posture of a joint application
to the Court, at least so far as the facts upon which the Court could
and must approve settlement is concerned. It is here that the true
nature of the concealment appears, and defendants' failure to act
affirmatively, after having been given a copy of the application for
approval, can only be defendants' decision to take a calculated risk
that the settlement would be final. * * *
“To hold that the concealment was not of such character as to result
in an unconscionable advantage over plaintiff's ignorance or
mistake, would be to penalize innocence and incompetence and
reward less than full performance of an officer of the Court's duty to
make full disclosure to the Court when applying for approval in
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minor settlement proceedings."
The principles applicable to the court's authority to vacate settlements made on
behalf of minors and approved by it appear well established. With reference
thereto, we have held that the court in its discretion may vacate such a settlement,
even though it is not induced by fraud or bad faith, where it is shown that in the
accident the minor sustained separate and distinct injuries which were not known
or considered by the court at the time settlement was approved, Larson v. Stowe,
228 Minn. 216, 36 N.W. (2d) 601, 8 A.L.R. (2d) 455; Wilson v. Davidson, 219
Minn. 42, 17 N.W. (2d) 31; Dasich v. La Rue Min. Co. 126 Minn. 194, 148 N.W.
45; and even though the releases furnished therein purported to cover both known
and unknown injuries resulting from the accident. Larson v. Stowe, supra. The
court may vacate such a settlement for mistake even though the mistake was not
mutual in the sense that both parties were similarly mistaken as to the nature and
extent of the minor's injuries, but where it is shown that one of the parties had
additional knowledge with respect thereto and was aware that neither the court nor
the adversary party possessed such knowledge when the settlement was approved.
As stated in Keller v. Wolf, 239 Minn. 397, 401, 58 N.W. (2d) 891, 895:
* * * * although in Minnesota the mistake need not be 'mutual' * *
* there must be concealment or, at least, knowledge on the part of
one party that the other party is laboring under a mistake in order to
set aside a release for unilateral mistake. Equity will prevent one
party from taking an unconscionable advantage of another's mistake
for the purpose of enriching himself at the other's expense."
2. From the foregoing it is clear that in the instant case the court did not abuse its
discretion in setting aside the settlement which it had approved on plaintiff's behalf
while he was still a minor. It is undisputed that neither he nor his counsel nor his
medical attendants were aware that at the time settlement was made he was
suffering from an aorta aneurysm which may have resulted from the accident. The
seriousness of this disability is indicated by Dr. Hannah's report indicating the
imminent danger of death therefrom. This was known by counsel for both
defendants but was not disclosed to the court at the time it was petitioned to
approve the settlement. While no canon of ethics or legal obligation may have
required them to inform plaintiff or his counsel with respect thereto, or to advise
the court therein, it did become obvious to them at the time that the settlement then
made did not contemplate or take into consideration the disability described. This
fact opened the way for the court to later exercise its discretion in vacating the
settlement and under the circumstances described we cannot say that there was any
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abuse of discretion on the part of the court in so doing under Rule 60.02(6) of
Rules of Civil Procedure.
3. Defendants contend that, since plaintiff's counsel also had information with
respect to plaintiff's injuries which was not disclosed to the court at the time
settlement was made and which might have caused the court to withhold approval
thereof, plaintiff cannot in good conscience now seek to have the settlement set
aside. Without determining whether a minor would be thus bound by his counsel's
actions, we find no basis for defendants' contentions in this respect. Their claim has
reference to a letter of Dr. Paul S. Blake to plaintiff's counsel dated March 1, 1957,
wherein he stated:
"* * * There may be some permanent brain injury in association with such a
condition [cerebral concussion and contusion]. * * *
I think I can say that he has a post-concussion syndrome,
moderately severe and that these symptoms will probably improve
gradually over the next 6 to 12 months. * * * I would recommend
that this case not be settled for at least a year or so that these
findings can be definitely assessed and so that we can guard against
any unforeseen complications developing."
While this letter was not submitted to the court at the time it approved the
settlement, it does appear that an affidavit of Dr. Blake attached to the petition
asking approval of the settlement was submitted to it. Therein the following
appears:
"* * * That your affiant conclude[s] on that date [February 22,
1957] that David Spaulding had had a cerebral concussion and
contusion and probably had some post- concussion cerebral edema.
That there may be some permanent brain injury in association with
such a condition, and that he is probably having a post-concussion
syndrome and that these symptoms will probably improve
gradually over the next six to twelve months."
It is clear therefrom that all essential and basic information as to plaintiff's
concussion with the possibility of some permanent brain injury was fully disclosed
to the court before it approved the settlement; and that this factual situation would
not be sufficient to estop plaintiff from seeking to have the settlement vacated
because the aorta aneurysm had not been disclosed to the court or taken into
10
consideration at the time such settlement was approved.
4. It is also suggested that the settlement made on behalf of the minor was in part at
least dependent upon insurance limitations relating to plaintiff's injuries; and that
these having been a factor should constitute a bar to the court's exercise of its
discretion in vacating such settlement. No decisions are cited in support of this
contention. There are, however, numerous decisions holding that insurance
limitations have no part in the trial of actions relating to personal injuries or
property damage, Jeddeloh v. Hockenhull, 219 Minn. 541, 18 N.W. (2d) 582; Lee
v. Osmundson, 206 Minn. 487, 289 N.W. 63; see, also, Brown v. Murphy Transfer
& Storage Co. 190 Minn. 81, 251 N.W. 5; and it would seem fairly clear that the
principles governing this rule would be equally applicable here. In any event, there
is nothing in the record which lends support to defendants' contention in this
respect. Nowhere does it indicate that defendants had disclosed either to counsel for
the plaintiff or to the court that insurance limitations were involved in the
settlement; or that otherwise the court had knowledge thereof or gave consideration
thereto at the time it approved the settlement. Under all such circumstances, no
weight can be given to this argument.
Affirmed.
5.2.
Example: The Case of Alton Logan
Visit this web site and read the article and watch the video regarding Alton Logan:
http://www.cbsnews.com/stories/2008/03/06/60minutes/main3914719.shtml
It may be seen here too. If you can’t get it running at either link, please email me
immediately!
http://www.cbsnews.com/video/watch/?id=4126194n
5.3.
Example: Confidential? Privileged?
For each statement, determine whether (1) they are confidential under the
Model Rules; (2) if so whether any exceptions apply; and (3) whether they are
privileged under the definition given in 8.1..
1. A client tells you she committed a crime last week.
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2. A client asks questions in confidence about securities law. You explain the
law. He then says, “That’s useful because I am in the middle of pulling off a
stock swindle, and I want to know what laws I’m breaking.”
3. Same as last hypo, but the client says “I have completed a stock swindle.”
4. You are at a party discussing current events with your client when your
client’s friend joins you and mentions that your client has decided to breach a
contract with a customer.
5. You are a criminal defense attorney hired to represent Ostrow, who has
defrauded elderly home owners. Ostrow knocks on doors and offers to “seal”
driveways for $500, but then simply paints the driveways black. In the course
of preparing for the trial, Ostrow asks you about whether the local county has
an active consumer fraud unit, about the penalties for his conduct, and about
what he can safely do with the $19,000 cash he has accumulated through the
scam.
6. You represent the seller of a corporation, who confides in you that her
corporation may have violated export control regulations. She instructs you
not to discuss this issue unless buyer’s counsel directly inquires about
compliance issues, in which case you are to inform counsel that seller will
indemnify buyer for any costs arising from federal regulation compliance.
7. In the course of attorney-client communications, your client mentions that in
college she was an All-American swimmer.
8. Your client says he will bribe some witnesses, and if the witnesses don’t agree
to perjury he will have the witnesses killed.
5.4.
Example: Let a Smile Be Your Umbrella
A fifth-year associate at a major firm prepared a memorandum for the client
outlining possible settlement strategies—and then mailed the document to the
opposing party. Once she realized her mistake, she ran down to the private mailbox
company where the plaintiff’s lawyer had his mail sent to. She saw the envelope in
the window of the lawyer’s box. She asked the employee to hand it to her. The
employee refused. She stepped behind the counter and reached for the envelope. A
fight ensued. Blood soon stained the envelope. The employee claims that the
associate beat him with an umbrella. The associate claimed the employee banged her
head against the wall “for four minutes.” As the altercation raged, the plaintiff’s
lawyer showed up to claim his envelope. According to whose story is to be believed,
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the plaintiff’s lawyer promised not to read the contents at all, or until the next day.
He did read them.
5.5.
Example: Loose
Sandburg)
Lips
Sink
Ships
(Hoppin
and
A 31-year-old stock trader who cleared more than $400,000 in profits after he
learned privileged information about a merger from a Brobeck, Phleger & Harrison
associate pleaded guilty to a felony Tuesday. Matthew Joel Mesplou admitted he
heard about the merger of Sun Microsystems Inc. and Cobalt Networks Inc. last
September from Julie Freese, a second-year Palo Alto-based mergers and
acquisitions associate who has since resigned from the firm. Mesplou pleaded guilty
to making false statements to the SEC. Under terms of the agreement he will forfeit
$536,000. Mesplou was also charged with insider trading by the Securities and
Exchange Commission and is settling that case for $286,000, for a total forfeiture of
$822,000. Freese, who could not be reached for comment, has not been charged in
connection with Mesplou's trading. Nanci Clarence, whom Freese retained during the
investigations, said her client made a simple mistake. "The point is, Julie's a victim
of circumstances in this case. She mistakenly made an innocuous remark to
somebody who already had information about the merger," Clarence said. "It's a
mistake."
U.S. District Judge William Alsup accepted Mesplou's guilty plea of making a
false statement to the SEC. He could face five years in prison, although a
significantly lower sentence is expected. "It's not an insider trading case," said
Mesplou's attorney, Keker & Van Nest partner Elliot Peters. "He didn't trade on
inside information." Mesplou admitted he talked with Freese about Cobalt Networks
on Sept. 17. The next day he purchased $1.2 million in Cobalt options and stock.
Peters said it was the third time Mesplou had taken a position in the company. The
merger was announced the day after his purchases. Mesplou then sold his stock,
clearing $412,000.
The next month, the SEC came calling. "I was contacted by the SEC and asked
whether I had heard any information about the Sun/Cobalt merger and I said that I
had not," Mesplou told Alsup. Leslie Caldwell, the assistant U.S. attoney handling
the criminal case, told Alsup Mesplou characterized his one-day profit as "a lucky
turn of events." Brobeck chairman Tower Snow Jr. said an associate—whom he
declined to name—told a Brobeck partner in January that she had been approached
by a government representative investigating an insider trade. Brobeck immediately
put her on administrative leave and she subsequently resigned from the firm. "I have
sympathy for the individual," Snow said. But he added that resigning was "the
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professional thing to do." "We are absolutely intolerant of intentional or inadvertent
disclosure of nonpublic information," Snow said. Freese was photographed for a
January article about young Bay Area corporate associates in The American Lawyer,
a Recorder affiliate. Robert Mitchell in the SEC's San
Francisco office would not comment on Freese's responsibility in the case.
"We're not going to comment on people who have not been charged," Mitchell said.
Every year Brobeck lawyers must sign a certification declaring that they are
knowledgeable of and in compliance with firm policy prohibiting discussion of
confidential client information. Snow said every deal is given a code name and only
attorneys working on a transaction know that it's underway. Government attorneys
did not identify the associate in their cases. The indictment against Mesplou was
unsealed Tuesday. Both cases state only that Mesplou and the associate "met
socially." It was apparently their second meeting, the first having come two weeks
prior. The two later developed a relationship, according to an attorney familiar with
the case. Both defense attorneys downplayed the significance of the case. "I don't
think that the U.S. attorney could prove an insider trading case here," Clarence said.
Helane Morrison, head of the SEC office here, touted the case as another signal that
the SEC is paying attention to Silicon Valley. "We're trying to keep our eye on
whether people in Silicon Valley are engaged in insider trading,"
Morrison said. "Also, I think the criminal case is very important to say that
people can't lie to the SEC."
5.6.
Example: Confidentiality and Privilege in Electronic
Discovery-- New Rule 502 to Protect Against Privilege
Waiver
Due to the skyrocketing cost of producing electronically stored information in
litigation, the U.S. Senate unanimously passed without amendment Senate Bill S.
2450 in February. If, as expected, the bill is approved by the House of
Representatives, the long-anticipated new Federal Rule of Evidence 502 should take
effect on Dec. 1.
Proposed Rule 502 is intended to reduce the staggering costs of document and
ESI review by protecting against waiver of the attorney-client privilege and workproduct immunity. The legislation would apply to proceedings commenced after the
effective date and, "insofar as is just and practicable," to all proceedings pending on
that date—obviously including many current lawsuits.
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In what now is likely its final form, Rule 502 seeks to protect against forfeiting
a privilege when disclosure in a federal action is the result of an innocent mistake.
The rule also would enforce often-agreed-upon court orders permitting procedures
like the so-called "quick peek" that allows requesting parties to assess the producing
party's ESI before more definitively delineating the scope of production, and "clawbacks" allowing the return of inadvertent disclosures without claim of waiver.
By way of background, in 2006, House Judiciary Committee Chairman James
Sensenbrenner, R-Wis.—concerned about rising costs associated with ESI—
suggested that the Judicial Conference of the United States consider proposing to
Congress a rule dealing with waiver of attorney-client privilege and work-product.
Unlike rules of civil procedure, rules governing evidentiary privilege must be
approved by an act of Congress pursuant to the Rules Enabling Act, 28 U.S.C.
2074(b).
The Advisory Committee on Evidence Rules accordingly prepared drafts that
were revised after testimony from a select group of judges, lawyers and academics,
and again revised after two days of public testimony and the consideration of more
than 70 written submissions from groups including defense and plaintiffs' lawyers,
corporate counsel, the American Bar Association and even prisoners. In late 2007,
the Advisory Committee provided its final draft, concluding that the current law on
waiver of privilege and work-product is largely responsible for the rising costs of
discovery, especially discovery of ESI. The Standing Committee on Rules of
Practice and Procedure and the Judicial Conference itself approved the text, which
then was introduced as a bill by senators Arlen Specter, R-Pa., and Patrick Leahy, DVt.
In complex litigation, lawyers spend significant time in efforts to preserve
work-product and the attorney-client privilege because they know that, under
existing law in some jurisdictions, if one protected document is produced—even
inadvertently—there is a risk that a court may find a subject-matter waiver. Subjectmatter waiver means that attorney-client privileged communications and workproduct are considered waived not only as to the disclosure at issue but as to all
related material—and not only in that instant case, but in all other cases.
ESI DISCLOSURE IS CHIEF PROBLEM
Lawyers producing paper or electronic data worry about subject-matter
waivers. Case law is rife with examples of inadvertent disclosures of otherwise
privileged material due to clerical, vendor or attorney error. But the real problem is
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ESI. Our still-adolescent paradigm of electronic data retention, versus the former
paper regime, mushrooms the potential for inadvertent production.
Problems include the fact that normal viewing of native-format computer
documents, for example, will not reveal hidden metadata about who wrote, edited or
last opened some PowerPoint presentation. Embedded data also don't always just
show up on the screens of reviewing attorneys. The now-ubiquitous word searches
performed using certain native applications, like Outlook, will not identify
responsive and potentially privileged attachments. Then there is the multiplereplication problem, endemic to ESI, that provides numerous opportunities for one
iteration of a privileged document to slip through a privilege review. These problems
are, of course, amplified by the sheer magnitude of sometimes gigabytes or terabytes
of data that are increasingly necessary to assess in the wake of the now-famous
Zubulake opinions and the subsequent 2006 civil procedure rule revisions governing
the production of ESI.
As a result of ESI and the fear of waiving privilege, there are reports of
increasingly expensive privilege reviews. Representatives from Verizon testified
during an advisory committee public hearing that the company had spent $13.5
million on one privilege review relating to a U.S. Department of Justice antitrust
merger investigation. "Think about that the next time you pay your phone bill," one
quipped. See Testimony of Ann Kershaw, Jan. 29, 2007, Hearing of the Advisory
Committee on Evidence Rules, at 89.
Rule 502 would try to address this cost-of-review issue in several ways. First, it
would provide that, in cases of actual waiver, the waiver would not automatically be
deemed a subject-matter waiver. Information other than that specifically waived
would be produced only if it "ought in fairness" be considered together. The
committee note explains that the "fairness" determination required for a broader
waiver determination should be limited to situations in which a party intentionally
puts information into litigation in a selective, misleading and unfair manner.
Obviously, like many of the rule's provisions, this will be litigated extensively, but
any cost savings here would seem to flow from damage control to limit the effect of
disclosures determined to be actual waivers, rather than from any savings during the
privilege review itself.
As to the genuinely menacing prospect of inadvertent disclosure, the proposed
rule provides that if such disclosure is made at the federal level, no waiver will be
found if the holder had taken reasonable steps to prevent the disclosure and
employed reasonably prompt measures to retrieve the mistakenly disclosed
information. This provision codifies a middle-ground standard that has been adopted
16
by a plurality of courts requiring some form of balancing test. A minority of courts
has applied either strict liability—meaning that any inadvertent disclosure is a
waiver, and perhaps a subject-matter waiver—or intent-based standards that take
hornbook knowing-and-intentional language to the opposite finding of no waiver for
inadvertent disclosures.
Under proposed Rule 502, state courts in subsequent state proceedings will be
required to honor Rule 502 determinations made at the federal level; if there is an
earlier disclosure of privileged or protected information in a state proceeding,
admissibility in a subsequent federal proceeding would be determined by the law that
is most protective against waiver, even in situations in which potentially lessprotective state law would otherwise provide a rule of decision. The exercise of
federal pre-emption and supremacy over state law under these circumstances was
evidently palatable to the group of state chief justices that commented on the
proposed rule. These justices succeeded, however, in blocking other language that
would have imposed a uniform middle-ground balancing standard on all inadvertentdisclosure cases, including those made in, and applicable solely to, state proceedings.
The state judiciary evidently thought this congressional regulation of traditional state
law would be anathema to principles of federalism, if not to the U.S. Constitution.
Importantly, under the proposed new rule, federal courts would be permitted to
enter confidentiality orders providing that disclosure of privileged or protected
material, for example, under quick-peek and clawback agreements, does not
constitute a waiver as to other parties in other state or federal proceedings. In fact,
early language prohibiting court confidentiality orders without agreement of the
parties was deleted. Presumably, therefore, such orders will be entered on disputed
motions or perhaps even courts' own accord.
Will the rule in its final version achieve its stated purpose of reducing the cost
of privilege review? Even a middle-ground balancing as to inadvertent disclosure can
provide seemingly harsh results. As recently as May 29, a District of Delaware court
applied a common law balancing test, but found waiver for the inadvertent
production of 165 privileged documents, out of tens of thousands reviewed, because
the party failed to satisfy its burden to establish that its search-and-review
methodology was "reasonable." Victor Stanley Inc. v. Creative Pipe Inc., 2008 WL
2221841, at *1-*7 (D. Md.).
Nor was the Victor Stanley court impressed with the producing party's "prompt
measures to retrieve the mistakenly disclosed data," as it chided the party for the
"delay" of a "one-week period between production by the Defendants and the time of
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the discovery by the Plaintiff of the disclosures -- a period during which the
Defendants failed to discover the disclosure." Id. at *8.
One week would actually seem very prompt when, as noted by the American
Bar Association in its Feb. 15, 2007, submission to the rules committee, it may be
months—even years—before errors are discovered, and determining when an error
"should have been" discovered is inherently subjective. Thus if such decisions were
to continue under the Rule 502's proposed balancing test, the rule would do nothing
to change current efforts to prevent inadvertent disclosure by extensive attorney
review.
The committee note to proposed Rule 502 does acknowledge, however, that
while the rule "does not require the producing party to engage in a post-production
review to determine whether any protected communication or information has been
produced by mistake," it does require follow-up on obvious indications of potential
communication of protected material. Moreover, regarding whether "reasonable
steps" were taken to prevent a disclosure, the committee note suggests that using
advanced analytical software applications and linguistic tools in screening for
privilege may suffice, i.e. with no page-by-page attorney review. Further,
implementation of an efficient system of records management may also be relevant
to a reasonableness determination.
Whether the rule succeeds in saving money, therefore, will depend on whether
courts are willing, first, to conduct balancing tests for inadvertent waiver in a manner
that understands the difficulties and costs of reviewing substantial ESI; and, second,
to freely enter anti-waiver orders when asked, perhaps even sua sponte.
Notably, the most controversial potential provision of Rule 502, governing
selective waiver, ultimately was discarded. "Selective waivers" between government
agencies and parties being investigated are attempts to agree that the party under
investigation will produce privileged material to the government, while still
preserving no-waiver status as to nonparties. The effectiveness of selective waivers,
however, has largely been rejected by the courts. See, e.g., In re Qwest Comm. Int'l,
450 F.3d 1179 (10th Cir. 2006).
Although the U.S. Securities and Exchange Commission clearly supported
inclusion of a provision codifying the legality of selective waiver in the proposed
rule, most others strongly opposed the provision. Several times during the public
hearings, business representatives indicated that, although they might have supported
the provision five years ago, in the current climate selective waiver would signal a
tacit approval of regulatory-agency belief that waiver is the touchstone of the level of
cooperation necessary to secure better treatment by the government.
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Corporate counsel and business argued that selective waiver would further chill
what might be an already cool reliance on the free dialogue between corporate
counsel and corporate representatives as contemplated by Upjohn v. U.S., 449 U.S.
383 (1981). Executives don't want to worry that advice solicited regarding a potential
compliance program will later become a blueprint of evidence about the company's
insufficiencies if failures occur. As a representative from the Association of
Corporate Counsel testified, selective waiver would put "an inherent endorsement
upon the culture of waiver." See Testimony of Susan Hackett, Jan. 29, 2007, Hearing
of the Advisory Committee on Evidence Rules, at 218. These arguments obviously
succeeded.
Whether those parties that staunchly opposed the erosion of the attorney-client
privilege through selective waivers, but otherwise hailed Rule 502, ultimately will
allow even more of their privileged material to be viewed by outsiders under the
protection of clawback and quick-peek agreements, however, remains an interesting
question.
Alvin F. Lindsay is a partner in the Miami office of Washington-based Hogan
& Hartson. He specializes in the litigation and trial of complex business disputes and
has expertise in technology in litigation. Linda M. Defendeifer, a research analyst at
the firm, provided assistance in the research and editing of this article.
8.8:
Example: Our Web Site
You work for a small firm and are responsible for developing the firm’s
website. Your partners recently finished successfully representing a Fortune 500
company, BanditBrothers Inc., in a major litigation matter. You propose including
the following on your firm’s website:
Partners Joe Jones and Donna Davies successfully represented BanditBrothers
Inc in its claim against Lasoo Industries.
Any problems? Why or why not?
5.8.
Example: Amy A. v. Cooper House (Former Exam
Question)
This former exam question is a hypothetical memorandum to an intern working
for a public interest law firm. Analyze only the second issue, which concerns
confidentiality.
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MEMORANDUM
TO: Summer Intern Client-Matter No: A1000-00102
FROM: The Amy A. v. Cooper House Team
DATE: September 2, 2008
RE: Ethics Issues in Preparation for the Upcoming Hearing in Amy A. v. Cooper
House
We need ethics research on a short fuse. This public interest law firm (PILF)
represented six residents (Amy, Brenda, Carla, Doreen, Elena, and Fiona) in a suit
against Cooper House, a halfway house run by Santa Clara County. Its two wings
(one for parolees and one for the mentally disabled) are an alternative to
incarceration or civil commitment in a mental hospital. The residents have jobs and
contribute money back to the County. Management at Cooper House had been
abysmal. The staff committed verbal, physical, and emotional abuse of residents, and
two of the residents also apparently suffered sexual harassment (if not sexual
battery). After talking with the six residents, we applied for a temporary restraining
order (TRO) enjoining any form of abuse. We worked long hours with the clients on
their declarations (signed under penalty of perjury). All six declared that they had
been hit, pushed and yelled at. Amy and Brenda declared that in the same incident
they had both been coerced into sexual contact with a staff member named Roger.
The County opposed the TRO. All staff members denied the abuse, although
they conceded that some sharp words had been exchanged. Before she even read the
TRO papers, Judge Lucas urged the County to stipulate to a TRO enjoining any form
of abuse, saying, in effect, that there’s no harm in stipulating to an injunction against
doing something you claim you’re not doing anyway. The TRO provided, “This
stipulation is neither an admission by any party nor a finding of the Court that any
violations of law have occurred.” Judge Lucas scheduled expedited discovery, a
settlement conference, and a permanent injunction hearing.
We prepped Amy for her deposition (excerpts attached). Amy was both a
parolee and under mental health supervision. She was worried about questions
relating to her criminal history. In confidence, she told me she had once tried to burn
down the house of an abusive foster parent and had started a fire at a junior high
school, but had not been suspected or caught either time. She told me that she
doesn’t handle stress very well, although her medication helps. Near the end of the
first day of Amy’s deposition, she testified very briefly about her and Brenda’s
encounter with Roger. Roger was present and did not disguise his disagreement with
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and contempt for Amy’s testimony. The continuation of her deposition was set for
next week.
The next day during a depo prep session with Brenda held before the first day
of her deposition, Brenda asked many questions about the penalties for perjury. I
asked her about her concern, and she said something like the following,
“Hypothetically, what if Amy had not been present during the encounter with Roger,
but had agreed to pretend to be a witness so that Roger could not claim it was simply
a “he said/she said” dispute?” Brenda was adamant that she had been coerced into
the contact. When I pressed her about her hypothetical question, she said that “My
testimony will be that Amy and I were both abused that day.” Brenda was able to
give me quite detailed recollections about Roger and the incidents concerning the
encounter.
Right after that, I met with Amy and shared my concern that her testimony had
been false, both in her declaration and in the deposition. Amy admitted that in her
deposition testimony she had lied about graduating from high school, and had lied
when she failed to list all of her criminal past. (She had been convicted of writing
bad checks.) But Amy did stick to her story that both Brenda and she had been
present and had been abused. I asked Amy questions to test her recollection, but she
had no details. She then asked me, “What did Brenda tell you?” Our discussion left
Amy visibly upset. She said, “One way or another, Cooper House will pay big-time.”
This bothered me, because Amy also mentioned she had not been taking her
medication. When I asked Amy about that, she told me to act like a lawyer, not like a
doctor. Then she said she was going to see Brenda.
We wanted to analyze the ethics rules, but we were due at the settlement
conference. The settlement judge, Nancy Corrigan, took quite an interest in the case.
She wanted settlement, and she wanted Cooper House to shape up. Corrigan outlined
the terms of a settlement, including new staff, new policies, physical improvements
to the building, closer monitoring by the county, and attorneys’ fees to PILF (to be
determined in law and motion practice after the tentative settlement was confirmed).
Obviously, this was an awesome settlement, even though any sexually abused
plaintiffs should have received some cash. Corrigan hammered the County’s counsel
on the facts, including the incident with Roger. County counsel said that there had
been brief consensual contact with only Roger and Brenda present, and he boasted
that he could conclusively prove that Amy had committed perjury. Judge Corrigan
replied, “So your defense is that the staff is having sexual contact with inmates? Who
will believe there is no coercion?” The judge asked both the counsel to see if the
settlement was acceptable.
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The County quickly approved the terms. We telephoned the six plaintiffs. Amy
and Brenda pushed hardest for the settlement. Amy said, “This settlement will bring
stage one to a close.” The other four clients initially wanted cash payments, but
eventually agreed to settle when Amy and Brenda pushed so hard.
Counsel for the County and I went back and put the tentative settlement on the
record. Judge Corrigan noted that because the plaintiffs were wards of the state, yet
another Superior Court judge would have to hold a final hearing to determine if the
settlement was in the plaintiffs’ best interest, and if it accurately reflected the merits
of the dispute. That hearing is scheduled for Friday of next week. The rules for such
a hearing are attached. The next day, we met with the six clients and gave them the
tentative settlement to sign. Amy was hostile. As I left, she said “Cooper House has
just begun to pay.” I asked her to elaborate, but she would not.
Now we’re faced with the upcoming hearing. We take the duty of candor to the
court quite seriously. First, if anything, should we do at the hearing? Second, Amy
scares us. I would like to reveal everything she told me to someone who can make
sure that Cooper House and its residents are safe. What are our options in that
regard? We need analysis under MR 1.6.
5.9.
(a)
Examples from the News
Did George Zimmerman's Lawyers Violate the Duty of Confidentiality?
http://www.legalethicsforum.com/blog/2012/04/george-zimmermans-lawyerswithdraw-and-make-inappropriate-comments-to-the-media.html
The lawyers for George Zimmerman have withdrawn from his case (see also here),
citing an inability to locate him and his failure to heed their advice.
At the press conference announcing the withdrawal, the lawyers noted that they think
Zimmerman is in the U.S., but no longer in Florida. They also expressed concern
about Zimmerman's "emotional and physical safety," suggesting that Zimmerman
might be suffering from post-traumatic stress disorder. They also noted that, without
their knowledge and despite specific advice to the contrary, they heard that
Zimmerman tried to speak with the special prosecutor in the case as well as a
television commentator. Finally, they questioned Zimmerman's creation of a website
to raise money for his defense, with one of Zimmerman's lawyers saying, "I wish he
would have told me."
22
I don't question Zimmerman's lawyers' decision to withdraw, but why did they need
to hold a press conference to explain themselves? The comments to the media were
not only unnecessary, but they seem to have revealed confidential information that
could potential hurt Zimmerman's case. The remarks suggest that Zimmerman is on
the run, potentially unstable, refusing to communicate with his attorneys, and
ignoring his lawyers' advice.
Natalie Jackson, the lawyer for Treyvon Martin's family, has expressed the same
point, but in more colorful terms:
Not only have they [Zimmerman's lawyers] spoken recklessly about racial issues,
enflaming passions and reinforcing stereotypes, but now they have thrown their own
client, George Zimmerman, under the bus by alluding to his possible flight from
justice.
Indeed. Can anyone offer a reasonable rationale for the lawyers' remarks? Does
George Zimmerman somehow benefit from his lawyers' very public, highly detailed
withdrawal?
As an aside, this is the second high profile case in the last year in which a criminal
defense lawyer appears to have said too much when withdrawing from a case.
(b)
Lawyer Faces Discipline Over Blog Posts
http://legalblogwatch.typepad.com/legal_blog_watch/2009/09/lawyer-facesdiscipline-over-blog-posts.html
A former Illinois assistant public defender faces disciplinary charges over postings to
her blog that Illinois authorities say exposed client confidences and revealed her
complicity in a client's fraud on a court. The attorney denies the charges and says she
plans to hire legal counsel to help her fight them.
The focus of the disciplinary complaint is Kristine Ann Peshek and her former blog,
"The Bardd Before the Bar -- Irreverant Adventures in Life, Law, and Indigent
Defense." Among other things, the blog chronicled her work as an assistant public
defender in Winnebago County. She discontinued the blog when her supervisor
became aware of it in April 2008 and fired her.
The two-count complaint from the Illinois Attorney Registration and Disciplinary
Commission charges Peshak with writing posts to her blog that identified her clients
and revealed confidential information about them. Although she never used last
names, she referred to clients by first names or by jail identification numbers, the
complaint says. In the course of her writing about her defense of clients on drug and
23
other charges, she revealed information that would be "embarrassing or detrimental"
to them, the complaint charges.
In one post, Peshak describes her conversation with a client just after the client's
sentencing. Having told the judge and Peshak that she did not use drugs, the client
now wanted to go back before the judge and tell him that she was on Methadone.
Peshak's blog post described her reaction:
Huh? You want to go back and tell the judge that you lied to him, you lied
to the pre-sentence investigator, you lied to me? And you expect what to
happen if you do this? I'll tell you what would happen; the sentence just
pronounced would be immediately vacated and you'd go to prison, that's what
would happen.
This post was double trouble, the complaint charges. Not only did Peshak harm her
client with the post, but she also revealed her complicity in her client's fraud upon
the court.
(c)
Lawyer blogs, public facts, and confidentiality (or, that blogging
criminal defense lawyer from Virginia won on First Amendment grounds)
http://www.legalethicsforum.com/blog/2013/02/lawyer-blogs-public-facts-andconfidentiality-or-that-blogging-criminal-defense-lawyer-won-on-first-.html
Many of us have been following the case of Horace Frazier Hunter, the criminal
defense lawyer in Virginia who blogged about his cases without client consent and
without a disclaimer about outcomes and guarantees. The State Bar successfully
disciplined the lawyer but he appealed on First Amendment grounds and has
achieved some success in that appeal (opinion here). The court framed the issues as:
In this appeal of right by an attorney from a Virginia tate Bar (“VSB”) disciplinary
proceeding before a three judge panel appointed pursuant to Code section 54.1-3935,
we consider whether an attorney’s blog posts are commercial speech, whether an
attorney may discuss public information related to a client without the client’s
consent, and whether the panel ordered the attorney to post a disclaimer that is
insufficient under Rule7.2(a)(3) of the Virginia Rules of Professional Conduct.
The court held that the blog was commercial speech and that the regulations
requiring a disclaimer about guarantees and outcomes were consitutional. No
surprises there.
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Then the court had to decide if the bar could prohibit lawyers from discussing public
facts that are potentially embarrassing or detrimental to the client. Here's the
interesting part: "Thus, we are called upon to answer whether the state may prohibit
an attorney from discussing information about a client or former client that is not
protected by attorney-client privilege without express consent from that client. We
agree with Hunter that it may not." That's contrary to a lot of settled expectations,
isn't it?
Further: "The VSB argues that it can prohibit an attorney from repeating truthful
information made in a public judicial proceeding even though others can disseminate
this information because an attorney repeating it could inhibit clients from freely
communicating with their attorneys or because it would undermine public
confidence in the legal profession. Such concerns,however, are unsupported by the
evidence. To the extent that the information is aired in a public forum, privacy
considerations must yield to First Amendment protections. In that respect, a lawyer
is no more prohibited than any other citizen from reporting what transpired in the
courtroom. Thus, the circuit court did not err in concluding that the VSB’s
interpretation of Rule 1.6 violated the First Amendment."
What do you all think about that holding? I don't like it, but have to admit that I'm
not deeply versed on the law of the First Amendment's application to attorney
speech. It seem to me that it even if the facts are public, it especially hurts to have
the client's own agent repeat them. It also makes me wonder about any continuing
duty of loyalty that might be tied to the subject matter of the representation, as in the
Oasis West Realty case. The holding doesn't just lack a "fit" with the law of
lawyering; it would seem to undo many important principles in that law. For
example, everything the client gives us (including information) is held in trust for the
benefit of the client. Why can I use what's been entrusted to me to embarrass my own
client?
[I've edited this a little bit and may continue to do so.]
UPDATE: in the comments, Margaret Tarkington offers these thoughts.
I think the opinion is absolutely wrong, John. I think the state constitutionally
can forbid attorneys from violating the traditional (and even quite broad) duty
of confidentiality. This is the whole point to my access-to-justice approach to
the First Amendment (45 U.C Davis L. Rev. 27). Traditional First
Amendment doctrines fail to illuminate what attorney speech must be
protected (such as speech essential to providing legal advice to clients or to
invoke the law on behalf of clients, and overarchingly, speech necessary to
invoke or avoid government power in the protection of client life, liberty, and
25
property), and, conversely, the traditional doctrines do not illuminate what
attorney speech constitutionally can and should be prohibited.
As you know, my view is that the First Amendment as applied to attorney
speech must be keyed to the attorney's role in the system of justice in
protecting client life, liberty, and property (or depriving others of life, liberty,
or property—for example, a prosecutor). Thus restrictions on speech essential
to that role are constitutional under my theory—and confidentiality would be
a prime example. Attorneys have access to client information solely because
of the delegation of state power to them to practice law, to discover the most
embarrassing and terrible information possible about people. That
information is provided to the attorney for the express purpose that the
attorney will be able to use the information to invoke and/or avoid
government power on behalf of that person. As an essential component of the
role of the lawyer, Virginia and other states can constitutionally prohibit
attorneys from disclosing information about their clients outside of what is
necessary for this role, unless the client consents.
As a matter of First Amendment theory, these ideas are reflected in the work
of Alexander Meiklejohn and Wittgenstein. Wittgenstein argues generally
that speech protection must be keyed to the "form of life" in which it exists.
Thus, as applied to the system of justice, speech regulation and protection
must preserve that form of life—and here, our system of justice as a “form of
life” requires confidentiality. Alexander Meiklejohn uses the town meeting as
an example. Although political speech is absolutely protected in town
meetings, yet it is and must be abridged (for example, through rules and
regulations about who speaks when, and order by the chair, etc.). The
abridgment is necessary to accomplish the governmental purpose—that is,
the purpose of holding the town meeting. While manipulation of the process
cannot be allowed through abridging just one side of an issue, for example,
abridgment through creating rules of the game is essential to preserve the
process itself.
In like manner, there are many restrictions on attorney speech that are
essential to the proper functioning of the attorney’s role in the system of
justice and as an advocate for her client. These regulations are constitutional
precisely because they make it possible for the speech essential to our system
of justice to take place. Without confidentiality, clients don’t talk, a lawyer’s
knowledge in pursuing legal remedies becomes limited, and, more
importantly, state powers and processes to discover information through the
justice system can be used by attorneys (who are licensed with state power to
26
discover such information for these very purposes) to instead embarrass and
undermine clients—and perhaps even harm their reputation and property. As
you know, there are plenty of regulations on attorney speech that I think are
unconstitutional under the First Amendment and that I have written about.
But confidentiality is not unconstitutional; instead, it is an essential aspect of
the attorney’s role in our system of justice.
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