§ 70 Attorney--Client Privilege--"Privileged Persons"

Privileged persons within the meaning of § 68 are the client (including a prospective client), the client's lawyer, agents of either who facilitate communications between them, and agents of the lawyer who facilitate the representation.

§ 71 Attorney-Client Privilege--"In Confidence"

A communication is in confidence within the meaning of § 68 if, at the time and in the circumstances of the communication, the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person as defined in § 70 or another person with whom communications are protected under a similar privilege.

§ 72 Attorney-Client Privilege--Legal Assistance as the Object of a Privileged Communication

A communication is made for the purpose of obtaining or providing legal assistance within the meaning of § 68 if it is made to or to assist a person:

(1) who is a lawyer or who the client or prospective client reasonably believes to be a lawyer; and

(2) whom the client or prospective client consults for the purpose of obtaining legal assistance.

§ 73 The Privilege for an Organizational Client

When a client is a corporation, unincorporated association, partnership, trust, estate, sole proprietorship, or other for-profit or not-for-profit organization, the attorney-client privilege extends to a communication that:

(1) otherwise qualifies as privileged under §§ 68-72;

(2) is between an agent of the organization and a privileged person as defined in § 70;

(3) concerns a legal matter of interest to the organization; and

(4) is disclosed only to:

(a) privileged persons as defined in § 70; and

(b) other agents of the organization who reasonably need to know of the communication in order to act for the organization.

Ethical Duty of Confidentiality Compared to the Attorney- Client Privilege

Purpose:
While both the privilege and the ethical duty share common purposes, the courts tend to emphasize the importance of the privilege in promoting communication between attorney and client; whereas the ethical duty is more often spoken of as part of the overall duty of loyalty an attorney owes to his or her client.

Application:
The privilege, as an evidentiary rules, applies only in the limited circumstance: that is, when a governmental body can use the twin powers of subpoena & contempt to compel revealing of information. The ethical duty, on the other hand, applies anywhere else, prohibiting disclosures and use of confidential information at any time (unless an exception is found).
 
Scope:
The attorney client privilege, as you saw in the Restatement sections above, covers confidential communications between attorney and client. The privilege does not extend to information from third parties. It may extend to communications with employees of the attorney, however. See, e.g. Commonwealth v. Mrozek, 657 A.2d 997 (Pa.Super. 1995)(privilege applied when client called the lawyer's office to ask the receptionist for an appointment because "I've just committed a homicide.").

The ethical duty, however, is much broader. Under the Model Code, the duty extended to "confidences" (atty-client privileged information) and "secrets" (anything a client wouldn't want revealed, regardless of source). Model Rule 1.6 simply uses "information relating to representation " In practice, the Model Code was interpreted as broadly as the language of 1.6 implies. The breadth of the definition can be seen in ABA Informal Opinion 1287 (June 7, 1974) (the names and addresses of clients of a legal services office are secrets within 4-101[A]). Both the privilege and the ethical duty extend beyond the end of representation. See ABA Informal Opinion 1293 (June 17, 1974) (duty of confidentiality survives death of a client); ABA Informal Opinion 1301 (March 25, 1975) ("duty continues after the relationship of a lawyer and client has ceased").

Exceptions – Waiver / Consent:

The evidentiary privilege belongs to the client, who can consent to disclosure or expressly waive the privilege. Also, a client can impliedly waive the evidentiary privilege. Implied waiver can occur in a number of ways, such as when the client, the client's lawyer, or another authorized agent of the client voluntarily discloses the communication in a non-privileged communication (Smith v. Smith, 839 S.W.2d 382 (Mo. App. 1992));  or when the client or attorney places the confidential communication at issue in trial (State ex rel. Chase Resorts, Inc. v. Campbell, 913 S.W.2d 832 (Mo. App. 1996)); or even, if the client’s attorney simply fails to object to the efforts to obtain privileged communications. Hollins v. Powell, 773 F.2d 191, 197 (8th Cir.1985).   When parties are represented by the same attorney, as among them there exists an implied waiver of both confidentiality and the privilege. McCormick, Evidence (E.Cleary, ed., 2d ed. 1972) § 91, at 190.("the communicating client, knowing that the attorney represents the other party also, would not ordinarily intend that the facts communicated should be kept secret from him.") Even an inadvertent disclosure may waive the evidentiary privilege, at least in some jurisdictions. See Shire v. Shire, 850 S.W.2d 923, 931 (Mo. App. 1993).

The ethical duty to keep confidential the client's information allows disclosure when the client gives informed consent to disclosure.  Rule 1.6  Interpretations of this requirement indicate that attorneys should take care to insure that consent is completely voluntary and well-informed. (ABA Inf. Opinion 1287 (June 7, 1974)). Rule 1.6 also implies consent to disclose that information "impliedly authorized in order to carry out representation." For example, an attorney may disclose client information to other attorneys in the firm and unless instructed that particular information be confined to specified lawyers. Waiver of the ethical duty is not as easy as waiver of the privilege: a secret is still a secret, at least unless it has become "generally known." Cf. Rule 1.9(c)(1). The fact that something is knowable does not mean that it is generally known. The problem of inadvertent disclosures of confidential information has become especially controversial in the case of technological communications. For example, how should an attorney act when he or she inadvertently receives an opposing party's confidential document, sent or faxed by mistake? The 2004 Model Rules (see Rule 4.4(b) require that the receiver “shall promptly notify the sender” but the comments note that any further duties are beyond the scope of the Rules.  However, the ABA had previously issued a formal ethics opinion  (ABA Formal Op.  92-368 (1992)) which advised lawyers not to review inadvertently disclosed material and instead to contact the sender for instruction.  Nearly as many states considering the matter have rejected this approach as have adopted it.  Compare the position of other authorities, which require returning or destroying the document, but do not require the attorney to refrain from reading the document. Berg Electronics, Inc. v. Molex, Inc., 875 F. Supp. 217 (D. Del. 1995); Resolution Trust Corp. v. First of America Bank, 868 F. Supp. 217 (W.D. Mich. 1994). Hartford Fire Insurance v. Garvey, 109 F.R.D. 323 (N.D. Cal. 1985), applied five factors: (1) reasonableness of the precautions to prevent inadvertent disclosure, (2) the time taken to rectify the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) the overriding issue of fairness.

Exceptions - Future Crimes and Frauds:

The evidentiary privilege is, in most jurisdictions, subject to an exception for communications sought to further any future crime or fraud. Court must find prima facie evidence of crime or fraud before allowing exception to privilege. State ex rel Peabody Coal Co. v. Clark, 863 S.W.2d 604 (Mo. 1993).  The Restatement summarizes this exception as follows:

§ 82 Client Crime or Fraud

The attorney-client privilege does not apply to a communication occurring when a client:

(a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or

(b) regardless of the client's purpose at the time of consultation, uses the lawyer's advice or other services to engage in or assist a crime or fraud.

The duty of confidentiality is also subject to an exception for future crimes. This area is one of the most controversial of the rules of professional conduct. Under the Model Code DR 4-101(C)(3) an attorney could reveal the client's intention to commit any crime and the information necessary to prevent it. The Model Rules limited this discretion. Until recently, Model Rule 1.6(b)(1) permitted disclosure only "to the extent reasonably believes necessary to prevent the client from committing a criminal act likely to result in imminent death or substantial bodily harm." Missouri follows this version of the rules.  In the Ethics 2000 revisions to the Model Rules, this very narrow position to allow disclosure simply “to prevent reasonably certain death or substantial bodily harm” – the threat needn’t be from a client crime and needn’t be imminent.  After the new Model Rules were adopted, in August 2003, the ABA again amended 1.6, in light of Enron and the Sarbanes-Oxley Act, to allow disclosures in situations of client crimes or fraud that result in financial injury.  (See Model Rule 1.6(b)(2)-(3) (2004).  This new rule is consistent with the position already adopted in many states and with the position taken by the Restatement.   The comments to Restatement §67 provide a helpful comparison between the crime-fraud exception to privilege and the exception to confidentiality based on a client’s crime or fraud:

This Section applies only when the likelihood of financial loss is great and the lawyer reasonably believes that use or revelation is necessary to prevent the crime or fraud or to prevent, rectify, or mitigate the loss it causes (see Comment f hereto). In contrast, the crime-fraud exception to the attorney-client privilege stated in § 82 applies without regard to the consequences of the intended act so long as the act itself is a crime or fraud. That exception to the attorney-client privilege applies only when a client consults a lawyer with intention to obtain assistance to commit a crime or fraud or so uses the lawyer's services, whereas the Section applies regardless of the client's intention at the time of consultation (see Comment g hereto). The crime-fraud exception to the attorney-client privilege is administered by a tribunal and applies only when a lawyer or another person is called upon to give evidence, whereas the Section concerns action that a lawyer may take on the basis of a reasonable belief and outside of any proceeding and thus without direction from a judicial officer. Finally, this Section is limited to client acts in which a lawyer's services are employed; the crime-fraud exception applies whether or not the lawyer's services are so employed. Due to the several differences in the requirements for this Section and § 82, a finding that a lawyer permissibly used or disclosed confidential client information under this Section and a determination whether § 82 applies must be made independently.

Lawyer disclosure under this Section is taken in the lawyer's personal capacity and not as agent. Accordingly, such disclosure would not constitute disclosure by an agent of the client for purposes of subject-matter waiver of other confidential communications under § 79.

Note that in most jurisdictions, disclosure of a future crime is not required, only permitted, by the rules. However, other civil or criminal law standards may require disclosure. (E.g, recall the case of Tarasoff v. Regents of Univ. of Calif. you likely studied in torts class).  An attorney must exercise sound professional judgment in deciding whether to reveal conduct that he or she reasonably believes would lead to imminent death or imminent bodily harm. This decision requires consideration of the nature of the relationship with the client and those who might be injured, the lawyer's own involvement in the conduct, any other extenuating factors that may exist. Generally, an attorney should seek to persuade the client to take suitable action and, if the attorney does decide to disclose, such disclosure should be no greater than reasonably believed necessary to prevent the crime.

As to other future crimes or wrongs not covered by the discretionary disclosure provisions of Rule 1.6 or as to any past crimes, this information is covered by the ethical duty just as any other information. An attorney is not allowed to reveal this information; however, he or she also may not further crimes or frauds by suggesting how to conceal them. See Model Rule 1.2(d)( Shall not counsel or assist in criminal or fraudulent conduct but may discuss legal consequences of proposed conduct and may counsel or assist in making good faith determination of validity, scope, meaning or application). Even where past crimes were committed with the attorney's (unknowing) assistance, the attorney may not, in most jurisdictions, disclose. There is some authority for the lawyer making a "noisy withdrawal" in such circumstances without actual disclosure of the confidence, but this is not expressly permitted in the text of the Rules themselves. See Comment to MR 1.2, ¶10.

Exception - Attorney Self-defense:
Model Rule 1.6(b)(3) provides that an attorney may reveal information to defend himself or his employees or associates against an accusation of wrongful conduct. The Model Code's provision was more specific: DR 4-101(C)(4) allowed disclosure to establish a claim or defense between lawyer and client, to establish a defense to criminal or civil claims based on conduct in which the client was involved or to respond to allegations in any proceeding concerning the representation. Attorney self-defense may also serve as an implied exception to the attorney-client privilege. See In re National Mtge Equity Corp. Mtge Pool Certif. Secur. Litig., 120 F.R.D. 687 (D.C. Calif. 1988) (law firm may disclose otherwise confidential attorney-client communications over client objections asserting privilege where the firm has been charged as co-defendant in securities fraud and other violations.)

This exception is one the courts are especially concerned about keeping fairly narrow, since it obviously is designed to protect not the client but the attorney. Courts are especially concerned about the use of this exception to coerce clients. See, e.g., Colorado v. Farrant, 852 P.2d 452 (Colo. 1993)(Lawyer suspended for sixty days for threatening to disclose client confidences unless client paid fee). Thus, any disclosure in this context should be no greater than necessary and should be made in a manner that limits access to only the tribunal and persons needing to know. While an attorney need not wait to be sued, the belief that an "accusation" has arisen must be reasonable. Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190 (2d Cir. 1974) cert. denied, 419 U.S. 998 (1975).

Exception - "Permitted by Rules or Required by Law or Court Order" :
This exception to confidentiality makes clear that the attorney-client privilege is the doctrine that governs disclosure when the subpoena power applies. Model Rule 3.3 makes clear that duties to the court apply even if in conflict with Rule 1.6. Once ordered or compelled by law to disclose, the ethical standards would be unlikely to be a defense to contempt or criminal charges of obstruction of justice. The best course of action for an attorney faced with what he or she considers an erroneous, although binding, order to disclose client confidences or produce protected documents would be to attempt to appeal the decision rather than comply. See Note, Attorney-Client Privilege -- Contempt: The Dilemma in Nondisclosure of Possibly Privileged Information, 45 Wash. L. Rev. 181 (1970).

Increasingly, attorneys are subject to reporting requirements or are being issued subpoenas to testify regarding their client's activities. These requirements are the subject of intense controversy. Consider IRS Form 8300, which requires reporting the identity of any clients and the amounts and payment dates of any cash transactions in excess of $10,000. The enforceability of subpoenas against attorneys requiring these disclosures has been upheld in most jurisdictions. See, United States v. Sindel, 854 F. Supp. 595 (E.D. Mo. 1994). But see, United States v. Monnat, 853 F. Supp. 1301 (D. Kan. 1994)(court referred issues of duty to respond to form 8300 to Federal Court Committee on Attorney Conduct). See generally, Podgor, Form 8300: The Demise of Law As A Profession, 5 Geo. J. Legal Ethics 485 (1992). Increasingly, prosecutors have used the subpoena power to compel testimony of defense attorneys. Criticism of these tactics is widespread, with various efforts to limit the effectiveness of such subpoenas. Whitehouse v. U.S. District Court, 53 F.3d 1349, (1st Cir. 1995), (upholds a local rule requiring federal prosecutors to get advance judicial approval before issuing a subpoena.)