Multistate Professional Responsibility Examination (MPRE) Confidentiality of Information Syllabus

Confidentiality of Information syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Confidentiality of Information in Multistate Professional Responsibility Examination (MPRE), not a summary of it.

1. 1

   The Ethical Duty of Confidentiality

   3 topics

   • Scope of confidentiality under Rule 1.6
     • Information relating to the representation, whatever the source
     • Distinction from the evidentiary attorney-client privilege
     • Confidentiality after the relationship ends
   • Use of confidential information
     • Use to the disadvantage of a client or former client
     • Use for the lawyer's or a third party's advantage
   • Safeguarding information and inadvertent disclosure
     • Reasonable efforts to prevent unauthorized access (Rule 1.6(c))
     • Disclosure impliedly authorized to carry out representation
2. 2

   Exceptions Permitting or Requiring Disclosure

   3 topics

   • Preventing harm
     • Preventing reasonably certain death or substantial bodily harm
     • Preventing or rectifying client crime or fraud causing financial injury
   • Self-protection and compliance disclosures
     • Establishing a claim or defense in a controversy with the client
     • Responding to allegations and fee disputes
     • Complying with a court order or other law
     • Securing legal ethics advice
   • Client consent and implied authorization
3. 3

   The Attorney-Client Privilege and Work Product

   3 topics

   • Elements and holders of the privilege
     • Communications, confidentiality, and legal-advice purpose
     • Privilege in the organizational client context
   • Exceptions and waiver
     • Crime-fraud exception
     • Express and implied waiver and subject-matter waiver
   • Work-product doctrine
     • Ordinary versus opinion work product
     • Relationship to the duty of confidentiality

Confidentiality of Information flashcards for Multistate Professional Responsibility Examination (MPRE)

20 of 49 cards from the Confidentiality of Information deck — real questions with worked answers.

1. What does the duty of confidentiality under ABA Model Rule 1.6(a) protect?

   All 'information relating to the representation of a client,' regardless of its source, whether or not it is privileged, and even if it is publicly available or already known to others.

2. How broad is the duty of confidentiality compared to the attorney-client privilege?

   The duty of confidentiality (Rule 1.6) is much broader: it covers ALL information relating to the representation from any source, while the privilege only protects confidential communications between attorney and client made to obtain legal advice and applies only in legal proceedings (evidence law).

3. Under Rule 1.6, may a lawyer reveal information the client already disclosed publicly or that is generally known?

   No. The duty of confidentiality applies to all information relating to the representation regardless of whether it is publicly known; the lawyer generally still may not disclose it absent consent or an exception (though use of 'generally known' information of a former client is allowed under Rule 1.9).

4. What are the two ways a lawyer is permitted to disclose confidential information besides the specific exceptions?

   (1) The client gives informed consent, or (2) the disclosure is impliedly authorized in order to carry out the representation.

5. What is 'informed consent' as required for disclosing client confidences?

   The client's agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed conduct.

6. What is 'implied authorization' to disclose confidential information?

   Authorization inferred from the circumstances to disclose information when doing so is necessary to carry out the representation (e.g., disclosing facts to opposing counsel during negotiation, admitting a fact that cannot reasonably be disputed, or sharing information with firm colleagues).

7. To whom within a law firm may a lawyer disclose client confidences without separate client consent?

   Lawyers in a firm may, in the course of the firm's practice, disclose information to one another (impliedly authorized), unless the client has instructed that particular information be confined to specified lawyers.

8. Does the duty of confidentiality continue after the attorney-client relationship ends or after the client dies?

   Yes. The duty of confidentiality continues after the representation ends and survives the client's death.

9. Under Rule 1.8(b), may a lawyer use information relating to the representation to the client's disadvantage?

   No. A lawyer must not use information relating to the representation of a client to the disadvantage of the client unless the client gives informed consent or the use is permitted/required by the Rules (e.g., a 1.6 exception).

10. May a lawyer use confidential client information for the lawyer's own benefit if it does not disadvantage the client?

    Under the Model Rules, using information to the client's disadvantage is prohibited (1.8(b)); a self-benefiting use that does not disadvantage the client is not barred by 1.8(b), though some jurisdictions and fiduciary principles still restrict using client information for personal gain.

11. Under Rule 1.9(c), what are the two restrictions on using or revealing a FORMER client's information?

    A lawyer must not (1) use information relating to the former representation to the former client's disadvantage, except as the Rules permit or when the information has become generally known, nor (2) reveal such information except as the Rules permit or require.

12. What duty does Rule 1.6(c) impose regarding safeguarding information?

    A lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

13. What factors determine whether a lawyer's efforts to safeguard information were 'reasonable' under Rule 1.6(c)?

    Factors include the sensitivity of the information, the likelihood of disclosure if safeguards are not used, the cost and difficulty of additional safeguards, and the extent to which safeguards adversely affect the lawyer's ability to represent clients.

14. Is a lawyer who takes reasonable security measures liable if an inadvertent disclosure or data breach still occurs?

    No. Rule 1.6(c) requires reasonable efforts, not a guarantee of security; an unauthorized disclosure that occurs despite reasonable safeguards does not by itself violate the rule.

15. What is the SEVEN-part list of permissive disclosure exceptions under Rule 1.6(b)? (name the categories)

    A lawyer MAY reveal confidences to: (1) prevent reasonably certain death or substantial bodily harm; (2) prevent client crime/fraud causing substantial financial injury using the lawyer's services; (3) prevent, mitigate, or rectify such substantial financial injury already done using the lawyer's services; (4) secure legal ethics advice; (5) self-defense in a claim/proceeding (self-protection); (6) comply with law or court order; (7) detect and resolve conflicts of interest in firm changes/mergers.

16. Under Rule 1.6(b)(1), what kind of harm permits disclosure, and is a crime required?

    A lawyer may reveal information to prevent reasonably certain death or substantial bodily harm. No crime is required and the harm need not result from the client's conduct (e.g., disclosing the location of an accidental toxic leak).

17. Compare the harm thresholds in Rule 1.6(b)(1) versus 1.6(b)(2)/(3).

    1.6(b)(1) addresses death or substantial bodily harm (no crime/fraud or use of lawyer's services required). 1.6(b)(2) and (3) require a client CRIME or FRAUD reasonably certain to cause substantial financial/property injury AND that the client used the lawyer's services to further it.

18. Under Rule 1.6(b)(2), what three conditions must exist to disclose to prevent financial harm?

    (1) The client is about to commit a crime or fraud, (2) reasonably certain to result in substantial injury to the financial interests or property of another, AND (3) in furtherance of which the client has used or is using the lawyer's services.

19. What is the difference between Rule 1.6(b)(2) and Rule 1.6(b)(3)?

    (b)(2) permits disclosure to PREVENT a future crime/fraud causing substantial financial injury; (b)(3) permits disclosure to PREVENT, MITIGATE, or RECTIFY substantial financial injury that has ALREADY occurred. Both require the client used the lawyer's services.

20. Under Rule 1.6(b)(4), what disclosure is permitted to secure ethics advice?

    A lawyer may reveal confidential information to the extent reasonably necessary to secure legal advice about the lawyer's compliance with the Rules of Professional Conduct.

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