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IV. Client Confidentiality(6% to 12%)

A. Duty of Confidentiality a lawyer shall not reveal information relating to the representation of

a client unless the client gives informed consent, the disclosure is impliedly authorized in order to

carry out the representation or the disclosure is permitted by one of the exceptions. The duty of

confidentiality is necessary to ensure complete candor between clients and their attorneys, so asto facilitate effective legal advice.

1. Scope of Duty this duty applies to all communications related to the representation made

by a client to her attorney even if the client did not request the attorney keep the information

confidential or its revelation would not harm or embarrass the client. This is an ethical duty that

prevents an attorney from voluntarily disclosing confidential information or using confidentialinformation to the disadvantage of her client, former client or prospective client.

! Source of Information the source of the information is irrelevant to this duty.2. Timing of Duty

! Before the Attorney-Client Relationship duty of confidentiality applies to allcommunications made by prospective clients before an attorney-client relationship is

formed even if an attorney-client relationship is ultimately never formed. As such, even

when no client-lawyer relationship ensues, an attorney who has learned information from

a prospective client shall not use or reveal that information.

! After the Attorney-Client Relationship the duty applies indefinitely. This duty survivesboth the attorney-client relationship and death of the client.

3. Exceptions to Confidentiality a lawyer may reveal information relating to the representationof a client after informed client consent or to the extent the lawyer reasonably believes necessary:

! Informed Consent After Consultation an attorney may disclose otherwise confidentialinformation if the client gives informed consent after consultation.

oImplied Consent an attorney has implied consent to reveal whatever isnecessary to carry out the representation (i.e. render competent legal services)

unless the client gives specific instructions to the contrary.

! To Prevent Reasonably Certain Death or Substantial Bodily Harm to preventreasonably certain death or substantial bodily harm.

! To Prevent Client from Committing Crime or Fraud That Will Cause Significant FinancialInjury to prevent the client from committing a crime or fraud that is reasonably certain to

result in substantial injury to the financial interests or property of another and in

furtherance of which the client has used or is using the lawyer's services.

! To Prevent, Mitigate or Rectify Substantial Financial Injury to prevent, mitigate or rectifysubstantial injury to the financial interests or property of another that is reasonably certain

to result or has resulted from the client's commission of a crime or fraud in furtherance of

which the client has used the lawyer's services. Distinguish from above exception,

because the client has already acted in this exception.! Legal Ethics Advice to secure legal advice about the lawyer's compliance with these

Rules of Professional Responsibility.

! To Establish a Claim or Defense to establish a claim or defense on behalf of the lawyerin a controversy between the lawyer and the client, to establish a defense to a criminal

charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's

representation of the client

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o Controversy between Lawyer & Cliento Defense to Criminal Charge or Civil Claimo Allegations Concerning Lawyers Representation of the Client

! To Comply with Other Law, Final Court Order or Other Controlling Ethical Duty tocomply with other law, court order or other controlling ethical duty (e.g. the duty to

prevent client perjury).

4. Fruits and/or Instrumentalities of a Crime an attorney may not keep, hide or alter the fruitsor instrumentalities of a crime.

! No Keeping the lawyer, however, does not have to disclose where the fruit orinstrumentality of a crime came from.

! No Hiding! No Altering

B. Duty to Prevent Client Perjury an attorney must not knowingly assist client perjury.

1. Client Will or Has Committed Perjury if the attorney knows that the client has committed

perjury the attorney must comply with the following three step remedial process. If the attorneyhas reason to believe that the client will commit perjury, the attorney must advise the client of this

three step process.

(1) Urge Client to Tell Truth if the client has already committed the perjury, the attorneymust urge the client to rectify the perjury.

(2) Withdrawal if the client refuses, the attorney must seek to withdraw from representation.(3) Lawyer Must Disclose Perjury if withdrawal is not permitted or will not undo the effect of

the false evidence, the attorney must disclose the perjury to the court as is necessary to

remedy the situation, even if it reveals confidential information.

2. Special Rules for Criminal Defendants because of the special protections historicallyprovided criminal defendants, however, the Rules do not permit a lawyer to refuse to offer the

testimony of such a client where the lawyer reasonably believes but does not know that the

testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must

honor the clients decision to testify.