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Daphne Drescher

By: Daphne Drescher (Guest Blogger)

Today, we are featuring a short (and we mean short) pop quiz on whether certain things in the legal land are privileged or confidential. Virtual paralegal and blogger extraordinaire, Daphne, wanted to join us to share this important information with our readers — that’s you! So, sip that fabulous beverage…you know the one that’s sitting there…staring at you from that desk of yours, answer these 10 quick questions, and see just how privileged/confidential smart and savvy you really are! A pen and post it will suffice. (On the bright side, even if the results indicate you aren’t that smart and savvy, you certainly will be after taking this quiz! It’s a win-win, even if you aren’t the brightest bulb in the paralegal light post).

Reprinted with permission from Proparalegal: http://proparalegal.com.

Is an attorney-client privileged bit of information confidential? Definitely. Is a confidential bit of information privileged? Perhaps, but not necessarily. How can you tell the difference?

(Answer “confidential” or “privileged” to each of the questions below. Then scroll down to the bottom of this post to see the answers):

1. Its purpose is to encourage a client to tell his or her lawyer all pertinent information! confidential or privileged?

2. It is an ethical obligation required by the Rules of Profession Conduct.  confidential or privileged?

3. It can be waived by intentional disclosure to a 3rd party. confidential or privileged?

4. It covers all information relating to the representation of a client, whatever its source.  confidential or privileged?

5. It is a rule of evidence. confidential or privileged?

6. It is designed to protect a client’s confidences from disclosure at all times. confidential or privileged?

7. It protects from disclosure relevant facts of a case that were relayed to an attorney by his or her client. confidential or privileged?

8. It can never be waived. confidential or privileged?

9. It protects against any requirement to disclose these communications in discovery or at trial. confidential or privileged?

10. Disclosure of this information can lead to malpractice claims. confidential or privileged?

_____

THE ANSWERS:

1. Its purpose is to encourage a client to tell his or her lawyer all pertinent information!

Answer? Bothconfidentiality and privilege are calculated to encourage complete candor on the part of a client with his or her attorney. In order to effectively represent a client, a lawyer needs to know all the facts, no matter what they are. Therefore, both the law and the ethics codes have been written to ensure that a client can reveal all facts to an attorney without fear of those confidences being disclosed.

2. It is an ethical obligation required by the Rules of Profession Conduct.

Answer? Confidentiality.ABA Model Rule of Professional Conduct 1.6 says that a lawyer “shall not reveal information relating to the representation of a client” unless the client gives explicitly informed consent, or unless required by certain other limited circumstances.

3. It can be waived by intentional disclosure to a 3rd party.

Answer? Attorney-client privilegecan be waived by the actions of a client, or even by the actions of an attorney or his/her staff. The rules regarding when and how privilege is waived vary a bit in different jurisdictions, so it is important to understand the rules regarding how privilege can be waived in your own state. (Stay tuned for upcoming Newsletter Practice Tips re waiving privilege!)

4. It covers all information relating to the representation of a client, whatever its source.

Answer? Confidentiality. The information covered by the duty of confidentiality is actually much broader than that covered by privilege. A lawyer has a duty to protect any information gained by virtue of the representation of a client, whatever its source. See Comment (3), ABA Model Rule 1.6.

5. It is a rule of evidence.

Answer? Attorney-Client privilege.Privilege is a rule of evidence that permits an attorney to refuse to testify as to confidential client information, and also permits a party to refuse to testify re communications with his or her counsel. It also permits a party to refuse to produce documents, ESI or other evidence reflecting communications with counsel. (See Fed. R. Evid. §501, Cal. Evid. Code §954.)

6. It is designed to protect a client’s confidences from disclosure at all times.

Answer? Confidentiality. An attorney and his or her staff are ethically obligated to protect a client’s confidences at all times. The language describing this duty in California is particularly strong: an attorney has a duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Wow!

7. It protects from disclosure relevant facts of a case that were relayed to an attorney by his or her client.

Answer? Neither!Neither confidentiality or privilege excuses a party from the requirement to disclose discoverable information. “Knowledge which is not otherwise privileged does not become so merely by being communicated to an attorney. . . . Obviously, a client may be examined on deposition or at trial as to the facts of the case, whether or not he has communicated them to his attorney.” Grand Lake Drive In v. Superior Court, 179 Cal.App.2d 122, 127 (1960) (citation omitted).

8. It can never be waived.

Answer? Confidentiality.An ethical obligation doesn’t have a time frame or conditions or a statute of limitations, and cannot be waived.

9. It protects against any requirement to disclose these communications in discovery or at trial.

Answer? Attorney-client privilege.This rule of evidence permits an attorney to refuse to testify as to confidential client information, permits a party to refuse to testify re communications with counsel, and permits a party to refuse to produce documents, ESI or other evidence reflecting communications with counsel.

10. Disclosure of this information can lead to malpractice claims.

Answer? Both! Disclosure by a lawyer or his/her staff of either confidential or privileged information can cause harm to a client, and to the client’s case. Breach of the duty of care resulting in harm to a client can be grounds for a malpractice suit.

So how did you do on our little quiz? Let us know!

Daphne is a virtual litigation paralegal and owner of California-based Drescher ProParalegal. She is also an instructor in the Paralegal Degree Program at Empire College. For more information, visit Daphne’s website http://proparalegal.com where you can subscribe to the free Drescher ProParalegal Newsletter full of litigation practice tips and resources for legal support staff. 

So are you the sharpest knife in the drawer? We certainly hope so. 

p.s.

The answer to that questions is yes…because you now know all of the answers and can now hold yourself out as a confidential/privileged information powerhouse, even if you didn’t know a thing before you read this post! (A special thank you to Daphne for that…)

We’ll see you next time! Get those high heels polished up (or those matching tie/sock combos laid out, for you fellas!) The weekend is in route.