This presentation thoroughly explains and illustrates a core responsibility of the legal profession: to protect a client’s information – including information about the client – from unauthorized disclosure. It also addresses two other aspects of legal ethics that are closely related, and always taught in concert with Confidentiality, the Attorney-Client Privilege and the Work Product Doctrine.
The presentation begins with the concept of “legal ethics,” and traces the origins of today’s formal rules of professional responsibility. The Duty of Confidentiality is introduced by explaining its basic purpose; its grounding is the common law of agency; and even criticisms of the duty.
The American Bar Association’s Model Rules on Confidentiality (Model Rule 1.6), as well as other Model Rules that are essential to those Rules, are set out and explained. The various approaches that the states have taken in their rules on Confidentiality are then demonstrated. Next, the Attorney-Client Privilege – a rule of evidence; not a rule of professional responsibility, is explained, with emphasis on its “elements,” the waiver of the Privilege, and the distinction between the Duty of Confidentiality and the Privilege. The Work Product Doctrine follows. It is a rule civil procedure, not a rule of professional responsibility or evidence, but a rule about “tangible” materials that are assembled in anticipation of litigation – materials that often contain information that is subject to the Duty of Confidentiality and the Work Product Doctrine. This section concludes with a comparison of the three topics.
The seminar then progresses to considerations about the Duty of Confidentiality and the Attorney-Client Privilege in the organizational setting. It explains ABA Model Rule 1.13, and the various legal approaches to determining who is the client in the organizational setting (the “Group” and “Entity” approaches), and who in an organization can communicate with the lawyer under the Attorney-Client Privilege (and the Upjohn case will be explained).
The presentation is interspersed with reinforcing multiple choice exercises (the instructor will explain why choices are correct or incorrect), and participants will receive, in addition to the slides, a copy of the author’s course manual – Legal Ethics: Confidentiality, the Attorney-Client Privilege and the Work Product Doctrine.
Our author and presenter, Kenneth J. Allen, the author of two Thomson Reuters’ law books, has been a lawyer for over 40 years, and has lectured on legal ethics for several training companies and also at Thomson Reuters/West’s Year in Review in Washington for the last five years.
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