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Upjohn Co. v. United States, 449 U.S. 383 (1981); Fed. R. Evid. 502; Restatement (Third) of the Law Governing Lawyers §§ 68-72.
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1What is the attorney-client privilege?
What is the attorney-client privilege?2What are the four elements that determine whether the attorney-client privilege applies to a communication?
What are the four elements that determine whether the attorney-client privilege applies to a communication?3What forms of communication are protected by the attorney-client privilege?
What forms of communication are protected by the attorney-client privilege?4If a communication is subject to the attorney-client privilege, are the facts contained in the communication also privileged?
If a communication is subject to the attorney-client privilege, are the facts contained in the communication also privileged?5For purposes of the attorney-client privilege, who are privileged persons?
For purposes of the attorney-client privilege, who are privileged persons?6Does the attorney-client privilege apply to a communication that is intended to reach a privileged person but does not actually do so?
Does the attorney-client privilege apply to a communication that is intended to reach a privileged person but does not actually do so?7For purposes of the attorney-client privilege, what is the definition of a communication made in confidence?
For purposes of the attorney-client privilege, what is the definition of a communication made in confidence?8In general, does the attorney-client privilege apply to a communication between privileged persons if a nonprivileged person is present?
In general, does the attorney-client privilege apply to a communication between privileged persons if a nonprivileged person is present?9For purposes of the attorney-client privilege, under what circumstances is a communication made for the purpose of obtaining or providing legal ass...
For purposes of the attorney-client privilege, under what circumstances is a communication made for the purpose of obtaining or providing legal assistance?10If a client is a corporation or other organization, what requirements must be met for the attorney-client privilege to apply?
If a client is a corporation or other organization, what requirements must be met for the attorney-client privilege to apply?11In general, if the attorney-client privilege is not waived, how long does the privilege last?
In general, if the attorney-client privilege is not waived, how long does the privilege last?12Is the client the holder of the attorney-client privilege?
Is the client the holder of the attorney-client privilege?13Are there circumstances in which a lawyer or other privileged person must assert the attorney-client privilege on the client’s behalf?
Are there circumstances in which a lawyer or other privileged person must assert the attorney-client privilege on the client’s behalf?14May the attorney-client privilege be waived either by the client or by the lawyer on the client’s behalf?
May the attorney-client privilege be waived either by the client or by the lawyer on the client’s behalf?15In general, is the attorney-client privilege waived if a privileged communication is inadvertently disclosed to someone who is not a privileged per...
In general, is the attorney-client privilege waived if a privileged communication is inadvertently disclosed to someone who is not a privileged person?16Does a client waive the attorney-client privilege by placing a privileged communication in issue in a court proceeding?
Does a client waive the attorney-client privilege by placing a privileged communication in issue in a court proceeding?17Can the protections of the attorney-client privilege be waived if a privileged communication is used to prepare or assist a witness in a court proc...
Can the protections of the attorney-client privilege be waived if a privileged communication is used to prepare or assist a witness in a court proceeding?18What is the crime-fraud exception to the attorney-client privilege?
What is the crime-fraud exception to the attorney-client privilege?19Does the crime-fraud exception to the attorney-client privilege apply if the client communicates with the lawyer with the purpose of obtaining assi...
Does the crime-fraud exception to the attorney-client privilege apply if the client communicates with the lawyer with the purpose of obtaining assistance in committing crime or fraud but then does not actually commit the crime or fraud?20May a court conduct an in camera examination of allegedly privileged attorney-client communications to determine whether they fall within the crime...
May a court conduct an in camera examination of allegedly privileged attorney-client communications to determine whether they fall within the crime-fraud exception to the attorney-client privilege?21Does the attorney-client privilege always apply to matters such as the existence of a client-lawyer relationship, the identity of a lawyer’s client...
Does the attorney-client privilege always apply to matters such as the existence of a client-lawyer relationship, the identity of a lawyer’s clients, and the amount or source of the lawyer’s fee payments?22Does the law recognize exceptions to the attorney-client privilege for fee disputes and for defending charges of attorney misconduct?
Does the law recognize exceptions to the attorney-client privilege for fee disputes and for defending charges of attorney misconduct?23A lawyer represented a client regarding a criminal charge of driving while intoxicated. The client brought his friend with him when he went to meet...
A lawyer represented a client regarding a criminal charge of driving while intoxicated. The client brought his friend with him when he went to meet with the lawyer in the lawyer’s office. The friend was not in the meeting to facilitate communications between the client and the lawyer. During the meeting, with his friend present, the client told the lawyer that he had 10 beers immediately prior to his stop and arrest for driving while intoxicated.May the client properly invoke the attorney-client privilege over this conversation?24A lawyer represented a client in tax matters. The lawyer took the client out for lunch in a crowded restaurant. While at lunch, the client and lawy...
A lawyer represented a client in tax matters. The lawyer took the client out for lunch in a crowded restaurant. While at lunch, the client and lawyer had a conversation about the tax ramifications of certain courses of conduct. The client was subsequently involved in a dispute with the Internal Revenue Service (IRS).Will the client likely be able to assert the attorney-client privilege to prevent the IRS from obtaining information regarding the lunchtime conversation?25What is attorney work product?
What is attorney work product?26What is the difference between opinion work product and ordinary work product?
What is the difference between opinion work product and ordinary work product?27In general, is work product protected from discovery and other forms of disclosure in litigation or other legal proceedings?
In general, is work product protected from discovery and other forms of disclosure in litigation or other legal proceedings?28In general, may one party obtain another party’s opinion work product only in extraordinary circumstances or if the opposing party has demonstrated...
In general, may one party obtain another party’s opinion work product only in extraordinary circumstances or if the opposing party has demonstrated a compelling need for its discovery?29May the protections of the work-product doctrine be waived by either the client or the lawyer?
May the protections of the work-product doctrine be waived by either the client or the lawyer?30Does the work-product doctrine protect the facts on which the work product is based?
Does the work-product doctrine protect the facts on which the work product is based?31What is the crime-fraud exception to the work-product doctrine?
What is the crime-fraud exception to the work-product doctrine?32Does a client waive the protections of the work-product doctrine by placing the work product in issue in a court proceeding?
Does a client waive the protections of the work-product doctrine by placing the work product in issue in a court proceeding?33Can the protections of the work-product doctrine be waived if the work product is used to prepare or assist a witness in a court proceeding?
Can the protections of the work-product doctrine be waived if the work product is used to prepare or assist a witness in a court proceeding?34A lawyer was representing a client in litigation over water rights. The lawyer prepared a memorandum for the client that outlined the lawyer’s opin...
A lawyer was representing a client in litigation over water rights. The lawyer prepared a memorandum for the client that outlined the lawyer’s opinion of the strengths and weaknesses of the various claims the client could bring against the opposing party. The opposing party issued a broad discovery request asking for any evidence or information in the client’s possession regarding the water-rights litigation. Must the client produce the lawyer’s memorandum?35In the context of a client-lawyer relationship, what information is considered to be confidential under the Model Rules of Professional Conduct (MR...
In the context of a client-lawyer relationship, what information is considered to be confidential under the Model Rules of Professional Conduct (MRPC)?36In general, under the MRPC, in what circumstances is a lawyer permitted to reveal confidential information?
In general, under the MRPC, in what circumstances is a lawyer permitted to reveal confidential information?37A lawyer was representing a client regarding a criminal charge of driving while intoxicated. The lawyer learned from the client's companion that th...
A lawyer was representing a client regarding a criminal charge of driving while intoxicated. The lawyer learned from the client's companion that the client had consumed several alcoholic beverages within an hour of driving on the day in question. The next day, the lawyer went to brunch with a friend and told the friend about the client's alcohol consumption. Has the lawyer violated his duty of confidentiality under the MRPC?38Under the MRPC, is a lawyer required to make reasonable efforts to protect confidential information from accidental or unauthorized disclosure?
Under the MRPC, is a lawyer required to make reasonable efforts to protect confidential information from accidental or unauthorized disclosure?39A corporation hired a lawyer to help it file an application for a very sensitive and lucrative patent. The lawyer routinely transported the corpora...
A corporation hired a lawyer to help it file an application for a very sensitive and lucrative patent. The lawyer routinely transported the corporation’s draft patent documents in his briefcase on his commute to and from work on the subway. One day, the lawyer forgot his briefcase on the subway, and a third party accessed the patent documents. Has the lawyer violated the MRPC?40In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s former clients?
In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s former clients?41In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s prospective clients, even if they do not actually be...
In general, under the MRPC, does a lawyer’s obligation of confidentiality extend to a lawyer’s prospective clients, even if they do not actually become the lawyer’s clients?42Is a lawyer’s professional obligation of confidentiality designed to promote trust between the client and the lawyer?
Is a lawyer’s professional obligation of confidentiality designed to promote trust between the client and the lawyer?43Under the MRPC, does the lawyer’s general obligation of confidentiality extend to information that is not itself confidential, but which could reas...
Under the MRPC, does the lawyer’s general obligation of confidentiality extend to information that is not itself confidential, but which could reasonably lead a third party to discover confidential information?44A lawyer represented a client in a routine divorce proceeding. A few months later, the lawyer was part of a family-law panel discussion hosted by a...
A lawyer represented a client in a routine divorce proceeding. A few months later, the lawyer was part of a family-law panel discussion hosted by a local bar association. The lawyer presented a hypothetical situation based on the client’s divorce. The lawyer did not identify the client directly or give any specific identifying details about the parties in the divorce matter.Did the lawyer’s use of the hypothetical violate the MRPC?45Is the lawyer’s general obligation of confidentiality under the MRPC identical to the doctrines of attorney-client privilege and work-product prote...
Is the lawyer’s general obligation of confidentiality under the MRPC identical to the doctrines of attorney-client privilege and work-product protections?46Under the MRPC, may a client give express, informed consent to the lawyer’s disclosure of information relating to the lawyer’s representation of th...
Under the MRPC, may a client give express, informed consent to the lawyer’s disclosure of information relating to the lawyer’s representation of the client?47A lawyer successfully represented a client in a high-profile criminal matter. The lawyer was contacted by a book publisher to author a book discuss...
A lawyer successfully represented a client in a high-profile criminal matter. The lawyer was contacted by a book publisher to author a book discussing the representation. The lawyer decided to write the book.In order to write the book without violating the duty of confidentiality under the MRPC, does the lawyer need to consult the client and obtain the client’s informed consent to the use of the client’s confidential information?48Under the MRPC, under what circumstances is a lawyer impliedly authorized to disclose confidential client information to carry out the representation?
Under the MRPC, under what circumstances is a lawyer impliedly authorized to disclose confidential client information to carry out the representation?49A lawyer worked at a law firm with 700 attorneys. The lawyer was representing a client in a divorce proceeding. The lawyer had lunch with another l...
A lawyer worked at a law firm with 700 attorneys. The lawyer was representing a client in a divorce proceeding. The lawyer had lunch with another lawyer at the law firm in the firm’s private cafeteria and discussed the client’s case during lunch. The client had not given any restrictions on which lawyers at the firm could be given information about the divorce matter.Under the MRPC, was the lawyer impliedly authorized to discuss the client’s case with the other lawyer at the law firm?50Must a lawyer obtain a client’s permission to disclose the client’s confidential information if the lawyer is seeking confidential legal advice reg...
Must a lawyer obtain a client’s permission to disclose the client’s confidential information if the lawyer is seeking confidential legal advice regarding whether the lawyer’s course of conduct complies with the MRPC?51Under what circumstances do the MRPC permit a lawyer to reveal information relating to the representation of a client without informed consent or i...
Under what circumstances do the MRPC permit a lawyer to reveal information relating to the representation of a client without informed consent or implied authorization?52A lawyer represented the husband in a divorce. The divorcing couple owned a business, the division of which was an issue in the divorce. During the...
A lawyer represented the husband in a divorce. The divorcing couple owned a business, the division of which was an issue in the divorce. During the representation, the husband revealed to the lawyer that for the past 10 years he had paid himself an annual bonus from the business’s earnings without his wife’s knowledge and had kept the money in a bank account of which the wife was unaware. The lawyer was uncertain whether the husband’s actions amounted to a crime or a fraud. Without informing the husband, the lawyer consulted a second lawyer, in a different firm, for advice on the lawyer’s ethical obligations. In the consultation, the husband’s lawyer showed the second lawyer relevant documents from which someone could readily determine the identities of the business and the parties.Did the husband’s lawyer violate the MRPC by revealing client information to the second lawyer?53Before disclosing information under an exception to the MRPC’s general confidentiality rule, should a lawyer attempt to convince the client to act ...
Before disclosing information under an exception to the MRPC’s general confidentiality rule, should a lawyer attempt to convince the client to act in a way that makes the disclosure unnecessary?54Under the MRPC, if a court orders a lawyer to reveal confidential information, what procedure must the lawyer follow in responding to the order?
Under the MRPC, if a court orders a lawyer to reveal confidential information, what procedure must the lawyer follow in responding to the order?