Chapter 3
Confidentiality
A note about teaching confidentiality: As teachers, we want to model good ethical behavior.
That’s why I ask each of you to not teach out of your old client files and not tell stories about
your actual clients. When you do, you teach your students that talking about cases (active or
closed) is okay for them, too. As the following case illustrates, blacking out the client’s name
Power Point Presentations: There are 32 slides on confidentiality and an additional (separate)
Presentation on attorney/client privilege (and work product) that is 28 slides.
Chapter Hypothetical: (pg. 73) Have your students look at the Doe v. Roe case (93 Misc.2d
201, 400 N.Y.S.2d 668 (1977) (Google Doe v. Roe and this case will appear in Google Scholar)
for a look at how the New York court handled a situation where a psychiatrist wrote a book
about a husband and wife (both patients) reporting verbatim their thoughts and emotions
including their sexual fantasies and the disintegration of their marriage. There may or may not
have been oral consent to the biography given while the two were still patients. The doctor
Activity Suggestion: (pg. 73) Demonstration Line-Up with this question: On a scale of 1 – 10
(ten being really horrible) how bad would it be for April to write this book, changing the name
but keeping the facts of the case. (It was an infamous case so anyone would recognize the facts).
Video Alert: This chapter has six different video clips to illustrate how the duty of
confidentiality is violated every day.
Video Segment #12 (Confidentiality Issue: Public Information) (page 68) shows our two
paralegals having coffee in a coffee shop. Alicia reads out loud from the newspaper about Judy’s
apple fritter case. The first time shows Judy responding improperly. The second time she does it
Video Segment #13 (Confidentiality Issue: Disclosure of Damaging Information) (page 72)
shows Alicia’s conundrum when she must release confidential information to opposing counsel
that is detrimental to her client.
Video #11 (Confidentiality Issue: Need to Know Circle) (page 73) has Paralegal Judy telling
someone else in the law office (someone who is outside of the need to know circle) about a case
Video Segment #14 (Confidentiality Issue: Family Exception?) (page 76) shows Paralegal Judy
violating her duty of confidentiality with her mom. This is a clear violation. This teaches that
Video Segment #10 (Privilege Issue: Misdirected Email) (page 79) shows Michael telling his
supervising lawyer that he accidentally sent something intended for the client to opposing
counsel. The answer to this question is state-specific. Have your students find out what your
Video Segment #15 (Confidentiality Issue: Attorney/Client Privilege) shows Paralegal Alicia
finding out some bad information about client Hutchinson. When he gives her a hint that he
Lesson Objective: What is the big deal about confidentiality? (pg. 74)
Lecture Suggestion: The point of this section is to get the students to buy-in to the importance
of this duty. The viability of the legal system hinges on this duty because the client will only tell
us the truth if s/he can be absolutely certain that his/her secrets are safe with us. As we cannot sit
with the client and enumerate what information that client considers secret and what it would be
Lesson Objective: What is confidential? (pg. 74)
Video Alert: Video Segments #11, #12, #14 and #15 fit here to illustrate that the duty is a
personal one.
Lecture Suggestion: Here’s where your students need to get a grip on this “personal duty”
concept. It doesn’t matter what other people are doing. It doesn’t matter if the senior partner is
This “need to know circle” is difficult to get lawyers to buy into. Everyone at a partnership
meeting is in the need to know circle, they have told me. Well, no. They only have to know what
they need to know. They don’t need to know all of the details and all of the secrets of all of the
clients. For a position contrary to mine, see the dissent in Spur Products Corp. v. Stoel Rives
LLP, 142 Idaho 41, 122 P.3d 300 (2005). (Pretty short case. There is a pdf copy on
paralegalethics.net in Extra Resources.) A case that appears to support my “need to know circle”
theory is Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277 (Fla. App. 2
Distr. 2005) where the court said:
If that doesn’t convince them, perhaps the Conflict of Interest chapter will convince your
students that the less they know about cases that are not their own, the easier it will be to change
jobs. If we stick to knowing only our own “need to know circle” cases, we will not need to
worry about the conflicts of the entire law firm.
Lesson Objective: How long does the duty last? (pg. 75)
Lecture Suggestion: This is always fun. The duty lasts until you are dead. After you are dead,
you can tell anyone you like. Then some wise guy in the class says, can I write a book with all
of the client’s secrets in it to be published posthumously? And I say: Sure. How are they going
to prosecute you?
2. All information/relating to the representation of the client/regardless of the source.
3. regardless of the source = from the client or anyone else
Lesson Objective: How can the paralegal live up to the duty of confidentiality? (pg. 76)
Lecture Suggestion: The Balana and Mark story is, more or less, a true story.
Lesson Objective: What confidential information can be divulged? (pg. 77)
Lecture Suggestion: Exception #1 may seem obvious to you, but it is a question I usually get
from students: “Do I have to get a written waiver from the client to respond to discovery?” My
Discovery, BTW, is a Key Term pursuant to some requests from educators.
Exception #2: Need to Know (pg. 77)
Video Alert: (pg. 77) Video #11 (Confidentiality Issue: Need to Know Circle) has Paralegal
Judy telling someone else in the law office (someone who is outside of the need to know circle)
soon as she looks at the newspaper or hears something else about the case. The “apple fritter”
makes the case identifiable.
Challenge Assignment (pg. 78) What exception does your state use re preventing a crime?
Does the crime have to involve death? Is serious financial harm enough? Does the rule make
reporting mandatory (“shall”) or discretionary (“may)? There is a lot to discuss in this section
but in this otherwise-too-long chapter, I did not have room.
Exception #5: (pg. 78) If you are interested in a recent political use of this exception, take a look
at Al Odah v. U.S., 346 F.Supp.2d 1 (D.D.C. 2004) one of the cases filed regarding the detention
of suspected terrorists at Guantanamo Bay. This case discusses the government’s stripping these
prisoners of various rights typically afforded to suspected criminals, including having private
(“A lawyer may reveal client confidences and secrets, to the extent reasonably necessary
··· [t]o prevent a criminal act that the lawyer reasonably believes is likely to result in
Proving, once again, that most people don’t understand the difference between the privilege and
the duty…. the Al Odah case is pretty long, but you could pare it down for in-class reading and
use it for several lessons.
It has also since been to the U.S. Supreme Court, and you can find it on www.oyez.org.
Exception 8 (pg. 79)
Is the duty of confidentiality somehow held in abeyance when the legal professional is speaking
Check Your Understanding: (pg. 79)
2. of the source
4. forever
6. express written waiver
8. defend against the lawsuit
10. client information
Lesson Objective: The “not exceptions” (page 79)
Lecture Suggestion: Students may want to know how you personally deal with this issue
(presuming you are or have been a practicing lawyer or paralegal. If everything is confidential,
how do you have a conversation with your spouse or friends?
Video Segment #14 (Confidentiality Issue: Family Exception?) (pg. 80) shows Paralegal Judy
violating her duty of confidentiality with her mom. This is a clear violation. This teaches that
there is no “mom exception” to the duty. (There is also no best friend or spouse exception.)
Lesson Objective: How has technology changed confidentiality? (pg. 80)
Lecture Suggestion: There are two approaches to teaching this section. The first, the one I take,
is that technology hasn’t changed the rules of confidentiality at all. We can just apply all of the
old rules to our new ways of communicating. The second approach is that technology has
created a whole new set of rules. For example, it is a violation of my duty of confidentiality to
New in this edition are Figure 1 a fax cover sheet with confidentiality warning, and Figure 2 a
confidentiality notice for email. on pages 32-33).
Video Alert: If you haven’t already shown video segment #10 where Michael sends the email to
opposing counsel instead of the client, do it here. I’m not sure he was appropriately afraid or
contrite in this video. I would have been scared to death. Get your students to talk about their
feelings. How should we act when we have made a mistake? Could the lawyer be sued for
attorney reviewed the privileged documents and copied some of them. The law firm was
disqualified.
Video Alert: (pg. 81) Video Segment #10 (Privilege Issue: Misdirected Email) shows Michael
telling his supervising lawyer that he accidentally sent something intended for the client to
Lesson Objective: What about client files and confidentiality? (pg. 85)
Lecture Suggestion: This is a terrific place to have your students research your state law on
retention of client files. After they find the law, have them try to draft an office policy based on
what they’ve found. If they can’t find anything, have them use the ABA opinion they’ll find in
the appendix.
Here are some questions to ask your students:
1. Is there a minimum number of years we must maintain the files?
2. Is the number of years arbitrary, or related to some event?*
3. Can files be reduced to electronic files for storage?
4. Can we destroy drafts and copies of documents ?
5. Can we destroy the “notes” file where there are only handwritten notes?
* For example, Wisconsin requires retention of files for six years after the last act for which the
lawyer could be sued has occurred. On the other hand, the DC Bar’s rule appears to be simply
five years after the termination of the representation.
Check the publisher’s website for the state-specific law on this issue. Or! Have your students do
the research!
Lesson Objective: What is the Attorney/client privilege (pg. 87)
Lecture Suggestion: This is a good time to dissect your state’s law on attorney/client privilege
and compare/contrast it with the duty of confidentiality language. This is my theory: the reason
Lesson Objective: Attorney/Client Privilege Contrasted? (pg. 88)
Lecture Suggestion: Teach some history! Swidler & Berlin v. U.S., 524 U.S. 399, 118 S.Ct.
2081 The District Court protected the Attorney Hamilton’s notes (taken during his conversation
with Deputy White House Counsel Vincent Foster shortly before Foster committed suicide) from
disclosure pursuant to the time-honored privilege surviving the death of the speaker, however,
the Court of Appeals carved out an exception, using a balancing test, holding that there is a
As only he could, Chief Justice Rehnquist wrote an educational opinion fit for the layperson’s
consumption. If you strip out the citations, this case is not too long to use for in-class reading.
If you want your students to take a look at the case (it is pretty hefty), go to www.oyez.org. This
case is famous, though, so you will find an explanation on Wikipedia.
Video Alert: (pg. 90) Video Segment #13 (Confidentiality Issue: Disclosure of Damaging
Information) shows Alicia’s conundrum when she must release confidential information to
opposing counsel that is detrimental to her client.
Activity Suggestion: Do your students know Venn Diagrams? I love to use one here.
Lesson Objective: What’s the work product doctrine? (pg. 92)
Lecture Suggestion: I’m sorry to tell you that Hickman v. Taylor (1947) is STILL the case on
work product privilege (endnote #9). It was the case when I was in law school, when you were
in law school, and today.
The story is this: In February 1943 the tugboat J.M. Taylor sank in the Delaware River. Five
crewmembers drowned. The owners of the tug hired Attorney Fortenbaugh who interviewed all
surviving crew. These same crewmembers testified before the U.S. Steamboat Inspectors. After
that, four of the five cases settled out of court. The fifth was filed in Federal Court.
Interrogatories sent to the defendants requested “copies of any statements or reports” made by
City of Reno v. Reno Police Protective Assn., a 2002 case from Nevada. Substitute Deichman v.
U.S. 2006 WL 3000448 (E.D. Va. 2006) if you are in Virginia. If you’re in New York, try Long
v. Marubeni America Corp., 2006 WL 2998671 (SDNY 2006).
Activity Suggestion: Have your students do this research for the work product privilege and
find the law in your state.
Lesson Objective: Are there any exceptions to the work product doctrine? (pg. 93)
Lecture Suggestion: The fun case here is Rico v. Mitsubishi Motors Corp., If you want your
students to read this case, they can find it through the website under Chapter 3 Extra Resources.
It is a bit more than 15 pages, double spaced.
The story is this: It’s an SUV rollover case. In 2002, Defendants’ counsel accidentally left a
document discussing the strengths and weaknesses of defendants’ technical evidence in a
conference room where Plaintiff’s counsel picked it up. Plaintiff’s counsel made copies but gave
plaintiff’s experts who had seen the document. This document was not attorney-client privileged
(as it was not a communication between attorney and client nor did it memorialize that sort of
The Rico Appellate Court disqualified defendants’ counsel based on a 1999 case: State
Compensation Ins. Fund v. WPS, Inc. where the California Appellate Court ruled that whenever
a lawyer ascertains that s/he may have privileged attorney-client material inadvertently provided
by another, that lawyer must notify the party entitled to the privilege. 70 Cal.App.4th 644, 82
Cal.Rptr.2d 799 (1999). Affirmed by the California Supreme Court, 42 Cal.4th 807 (2007) So?
Where was Plaintiff’s counsel when the WPS case was all over the news?
Answers to End of Chapter 3 Review Questions
Critical Thinking (pg. 94)
1. We discussed Doe v. Roe above, on page 61.
2. We’re looking for the student to recognize attorney/client privilege but to debate its
applicability to a discussion about a business transaction that may or may not be relevant
to the current trial. It doesn’t matter if Janelle is a lawyer, paralegal, law clerk, or
3. The problem of Sam asks the student to recognize the duty of confidentiality and its
4. This is a sticky place. George wants to get a new job so he wants to impress others with
his background and expertise. But how can he do that without disclosing client
confidences? One way to do it is to ask the client if George can use the client as a
The firms who will interview him will know what cases they have had in the past against
George’s firm and can then narrow the scope of inquiry. George may know what these
cases are, as well. My firm litigated the case X v. Y against your firm, but I did not work
on that case. Or…I did work on that case…and my duties were restricted to document
organization. Or whatever.
Research Activity Suggestion: Have your students research
Dillman + “Holland & Knight”
Assignments (pg. 95)
1. You might think I’m a little obsessive about this Ethics notebook but your students will
2. In case you don’t remember this movie: Maggie works for the Big Evil Law Firm. When
a partner (someone with whom she is having an intimate relationship) tells her about “the
smoking gun document” (the document that shows that the auto manufacturer knew about
the potential for the auto to explode if rear ended when the left turning signal is on,
1. Photocopy the Reading 3, 2, 1 graphic organizer form in the front matter file of this
2. I like this as a group project because it gives the students who are artistic an opportunity
to shine.
Review Questions (pg. 98)
2. Exceptions are listed on pages 77 – 79: #1 Doing your job; #2 Need to Know; #3
3. It is still confidential because “all information relating to the representation of the client”
is confidential. It doesn’t matter if you’re on the job or not.
5. All information related to the representation of the client regardless of the source.
7. This is both confidential and privileged if related to the representation of the client
8. This document is confidential (presuming a case) but not privileged if it was made as a
matter of course and not in anticipation of needing legal advice.
10. The notes are work product privileged.
1. Notes about Cases for Consideration
Case #1: Pellegrino v. Oppenheimer (2008) (pg. 96)
Questions About Case #1
Alter is suing Oppenheimer for sexual harassment. Oppenheimer is trying to disqualify Alter’s
counsel (Storch Amini) based on the allegation that an in-house Oppenheimer lawyer (Bukchin)
1. Were the first conversations between Alter and Bukchin confidential? Were they covered
by the attorney/client privilege?
Answer: Even though Alter asserted an attorney-client relationship with Bukchin when
they first met and asserted the privilege at the first deposition, she did not assert the
2. How about the conversations between Bukchin and the Storch Amini firm? Confidential?
Privileged? What was the court’s logic?
3. Were the conversations between Bukchin and Shame confidential? Privileged? Why?
What was missing?
Case #2: Elkind v. Bennett
Questions About Case #2 (pg. 99)
1. What was Elkind’s argument?
2. To whom did Knox owe a duty of confidentiality?
3. What was Knox’s defense ?
4. How was the case resolved?
Case #3: Insurance Co. of North America v. Superior Court
Questions About Case #3 (pg. 101)
1. What is a writ of prohibition? It’s mentioned in the first sentence of the case.
2. What is the purpose of the attorney/client privilege?
3. What is the effect of having an outsider present when the lawyer and client are speaking
to each other?
4. In the case of a corporation, who is an outsider?
5. What is the work product privilege and why is it relevant in this case?
In the News (pg. 104)
My point in including this “news article” is, one more time, to point out that many very smart
lawyers confuse the concepts of attorney/client privilege and the duty of confidentiality. The
error in this article is that the lawyers’ knowledge of the inmates innocence is protected by the
duty of confidentiality. The a/c privilege would only arise if and when they were required to
testify about what they knew. There is nothing in the article that indicates that they were ever
Video Case Studies (pg. 105)
Video Segment #10 (Privilege Issue: Misdirected Email) shows Michael telling his supervising
lawyer that he accidentally sent something intended for the client to opposing counsel via email.
The answer to this question is state-specific. Have your students find out what your state law is
when you receive information that is clearly confidential in error. The lawyer asks Michael
about the cover letter admonition about confidentiality. Does that admonition have any effect in
your state? Check your Rule 4.4.
Video Segment #12 (Confidentiality Issue: Public Information) shows our two paralegals having
coffee in a coffee shop. Alicia reads out loud from the newspaper about Judy’s apple fritter case.
The first time shows Judy responding improperly. The second time she does it right. The video
should illustrate to your students that the fact that the information is in the newspaper doesn’t
