Multistate Professional Responsibility Examination (MPRE) Confidentiality of Information Flashcards

24 sample cards from the Confidentiality of Information deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What limiting principle applies to ALL disclosures made under the Rule 1.6(b) exceptions?

   Any disclosure may be made only 'to the extent the lawyer reasonably believes necessary' to accomplish the permitted purpose; the lawyer must minimize disclosure.

2. What is the relationship between Rule 1.6 and Rule 1.13 (organizational clients) regarding disclosure?

   Rule 1.13(c) permits reporting out (disclosure outside the organization) to prevent substantial injury when the highest authority fails to act, even if Rule 1.6 would not otherwise permit it, subject to certain limits (not applicable to investigations/defense of the organization).

3. What is the attorney-client privilege?

   An evidentiary rule that protects from compelled disclosure confidential communications between a client and the client's attorney made for the purpose of obtaining or providing legal advice.

4. List the essential ELEMENTS of the attorney-client privilege.

   (1) A communication, (2) made in confidence, (3) between privileged persons (attorney, client, or their agents), (4) for the purpose of obtaining or providing legal advice or assistance. (No third parties present who destroy confidentiality.)

5. Who is the HOLDER of the attorney-client privilege, and who may assert or waive it?

   The CLIENT is the holder. Only the client may waive it. The attorney must assert the privilege on the client's behalf and cannot waive it without authority.

6. Does the attorney-client privilege protect underlying FACTS or only communications?

   Only the communication is privileged. Underlying facts are not protected merely because they were communicated to a lawyer; the client can be compelled to disclose facts known independently of the communication.

7. Are pre-existing documents protected by the attorney-client privilege simply because they are given to a lawyer?

   No. A client cannot shield otherwise discoverable pre-existing documents from disclosure by transferring them to the attorney; the privilege protects communications, not documents that were not privileged in the client's hands.

8. Does the attorney-client privilege apply when no attorney-client relationship exists?

   The privilege applies to communications made to obtain legal services even if the lawyer declines representation; a prospective client's communications are protected. But communications made when the person did not seek legal advice are not privileged.

9. How does the attorney-client privilege apply to corporate/organizational clients (the prevailing federal test)?

   Under Upjohn v. United States, the privilege covers communications between corporate counsel and employees (not just the 'control group') when made at the direction of superiors so the corporation can obtain legal advice, concerning matters within the employee's duties, and treated as confidential.

10. Does the attorney-client privilege survive the death of the client?

    Yes. The privilege generally survives the client's death (Swidler & Berlin v. United States), and the personal representative may assert it. (Exception: testamentary disputes among heirs/devisees.)

11. What is the crime-fraud EXCEPTION to the attorney-client privilege?

    The privilege does not protect communications made to enable or aid anyone to commit or plan a future crime or fraud. It applies to ongoing/future wrongdoing, not advice about past completed acts.

12. List the major EXCEPTIONS to the attorney-client privilege.

    (1) Crime-fraud; (2) disputes between attorney and client (fee disputes/malpractice); (3) communications relevant to a dispute between parties who claim through the same deceased client (testamentary); (4) joint-client disputes (no privilege between co-clients); (5) where the lawyer is an attesting witness or compliance with law is at issue.

13. How is the attorney-client privilege WAIVED?

    By voluntary disclosure of the privileged communication to a third party by the holder (the client) or with the client's consent; by putting the communication 'at issue'; or by failing to assert the privilege. Waiver as to one communication may extend to related communications on the same subject (subject-matter waiver).

14. What is the effect of disclosing a privileged communication in the presence of a third party?

    It generally destroys confidentiality and waives the privilege, unless the third party is an agent necessary to the representation (e.g., interpreter, accountant assisting counsel) or shares a common legal interest.

15. What is the 'common interest' (joint defense) doctrine?

    It allows parties with a shared legal interest to share privileged information with each other's counsel without waiving the privilege as to outsiders, where the communication furthers the common legal strategy.

16. Under Federal Rule of Evidence 502(b), when does an INADVERTENT disclosure NOT waive the privilege?

    When (1) the disclosure was inadvertent, (2) the holder took reasonable steps to prevent disclosure, and (3) the holder promptly took reasonable steps to rectify the error (e.g., following Rule 26(b)(5)(B) clawback).

17. What must a lawyer do under Rule 4.4(b) upon receiving a document that was inadvertently sent?

    A lawyer who knows or reasonably should know that a document or electronically stored information was inadvertently sent must promptly notify the sender.

18. Does Rule 4.4(b) require the receiving lawyer to return or refrain from reading the inadvertently sent document?

    No. Rule 4.4(b) only requires prompt notification to the sender. Whether the lawyer must return it or stop reading is left to other law and the lawyer's professional judgment, not the ethics rule itself.

19. What is the work-product doctrine?

    A doctrine (codified in Fed. R. Civ. P. 26(b)(3)) that protects from discovery materials prepared by or for a party or its representative in ANTICIPATION OF LITIGATION or for trial.

20. What are the two types of work product, and how does their protection differ?

    (1) ORDINARY (fact) work product — discoverable only on a showing of substantial need and inability to obtain the substantial equivalent without undue hardship. (2) OPINION work product — an attorney's mental impressions, conclusions, opinions, and legal theories — receives nearly absolute protection.

21. How does the work-product doctrine differ from the attorney-client privilege?

    The privilege protects confidential client communications for legal advice and is absolute (until waived); work product protects materials prepared in anticipation of litigation (by lawyer OR others), is qualified (overcome by substantial need for fact work product), and is held primarily by the attorney as well as the client.

22. Who may assert the work-product protection?

    Both the client and the attorney may assert work-product protection, because it belongs to and serves both. (Contrast the attorney-client privilege, which only the client holds.)

23. What showing overcomes ORDINARY (fact) work-product protection?

    The requesting party must show (1) substantial need for the materials to prepare its case and (2) that it cannot, without undue hardship, obtain the substantial equivalent by other means.

24. Is sharing work product with a third party as likely to waive protection as sharing a privileged communication?

    No. Work-product protection is waived only by disclosure to an ADVERSARY (or in a manner that substantially increases the chance an adversary obtains it); disclosure to a non-adversary third party with a common interest generally does NOT waive work-product protection, unlike the privilege.

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