Outsmart the MPRE: Confidentiality under Rule 1.6
To be prepared for these questions, you’ll need to understand several doctrines that require an attorney to preserve a client’s confidences, including attorney-client privilege, the work-product doctrine, and the lawyer’s ethical duty of confidentiality. This post focuses on the last category. Let’s unpack the duty of confidentiality and the wrong-answer traps that commonly appear on confidentiality questions.
A Lawyer’s Duty of Confidentiality under Rule 1.6
Under Rule 1.6(a), lawyers are permitted to disclose confidential information if the client either gives informed consent or the disclosure is impliedly authorized to carry out the representation. In addition, the duty of confidentiality is subject to some important exceptions, which are given in Rule 1.6(b). A lawyer may reveal confidential information for any of the following reasons:
- to prevent reasonably certain death or bodily harm;
- to prevent or rectify a crime or fraud that’s likely to cause financial harm and for which the client has used the lawyer’s services;
- to obtain legal advice about the lawyer’s compliance with the ethical rules;
- to establish a claim or defense in a formal controversy between the lawyer and the client, such as a fee dispute, or a client’s bar complaint or malpractice suit against the lawyer;
- to comply with a law or court order; or
- to detect and resolve conflicts of interest.
Confidentiality Question Traps
Don’t be duped by an emergency
When faced with this type of fact pattern, avoid making conclusions based on your gut sense of justice. Instead, stick to the rules. Dispassionately analyze the lawyer’s duty according to the broad definition of confidential information. The default rule is that the lawyer must keep information relating to the client-lawyer relationship confidential unless the client has consented, the disclosure is impliedly authorized, or another exception applies.
The wrong-exception trick
Don’t pick an answer option simply because it contains an exception cribbed right from Rule 1.6(b). Instead, examine whether the exception applies to the given facts. With careful analysis, you’ll avoid the trap and be on your way to a passing score.
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