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The Ethical Duty of Confidentiality

The Ethical Duty of Confidentiality. Ethical Rules . Lawyers are bound by ethical rules enforced by their state: Most states have adopted (and adapted) the ABA Model Rules of Professional Conduct. A few states still utilize their versions of the ABA Model Code of Professional Responsibility.

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The Ethical Duty of Confidentiality

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  1. The Ethical Duty of Confidentiality

  2. Ethical Rules • Lawyers are bound by ethical rules enforced by their state: • Most states have adopted (and adapted) the ABA Model Rules of Professional Conduct. • A few states still utilize their versions of the ABA Model Code of Professional Responsibility. • As part of the “cost” of practicing law, attorneys must comply with these rules or face sanctions.

  3. Guidelines for Utilizing Paralegals • State codes may have specific guidelines for the types of duties paralegals may perform. • Ethical codes for attorneys include guidelines for the proper use and supervision of paralegals in law offices. • The ABA has adopted Model Guidelines for the Utilization of Paralegal Services.

  4. Paralegal Codes • Paralegals are not personally bound by the lawyers’ codes, but any violations by paralegals will be imputed to their supervising attorney, perhaps resulting in discipline. • Paralegals who are members of a paralegal professional organization such as NALA or NFPA agree to be bound by their ethical codes.

  5. Paralegal Codes, cont. • No uniform code, and no direct sanctions from attorney or paralegal professional organizations (ABA, NALA, NFPA, NALS) • NFPA, NALA, NALS Codes reflect the topics of the attorney codes, but include additional information about UPL.

  6. Confidentiality • Ethical duty, imposed by Codes of Conduct for attorneys and paralegals • Based upon the clients’ need to be candid and open with their attorney without fear of disclosure • Anything learned during the process of representing a client may not be shared outside the legal team.

  7. Confidentiality, cont. • May not share with: • Friends • Spouses • Strangers • Anyone who is not involved in the direct representation of the client • Continues forever, unless client waives it or information falls under a recognized legal exception

  8. Tracy’s motto

  9. Attorney/Client Privilege • Evidentiary principle, not ethical • Belongs to the client, not the attorney • Extends to paralegals and other law office personnel • Does not automatically apply – must be invoked

  10. Inadvertent Disclosure • Accidental releases of confidential or privileged information may occur. • May be handled in a variety of ways: • Automatic waiver (if confidentiality is breached with communications to a third party, privilege is automatically waived) • No waiver (if there has been no knowing and voluntary waiver by the client, privilege is not waived) • Balancing Test looks to • Nature of the methods taken to protect the source • Efforts made to correct the error • Extent of the disclosure • Fairness

  11. Inadvertent Disclosure, cont. • ABA issued an ethics opinion: • A lawyer who receives a document from opposing parties or their lawyers and knows…that the document was inadvertently sent should promptly notify the sender in order to permit the sender to take protective measures.

  12. Questions?

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