Attorney-client Confidentiality Research Articles

The prevalence of cybercrimes and hacking incidents and their impact on the confidentiality of documents in civil proceedings

Confidentiality is important in legal practice as it obligates legal practitioners to protect clients' information. It is often linked to the right to privacy entrenched in section 14 of the Constitution of the Republic of South Africa, 1996. The link is made on the basis of clients' entitlement to attorney-client confidentiality. Furthermore, the rules of courts in civil proceedings require legal practitioners to include clients' personal or confidential information in court documents, including their identity numbers. The requirement of clients' personal information in court documents is found in particular in Rule 3(A)(1)(b)(i) of the Uniform Rules of Court, 2009 as amended. This personal information is uploaded online in the CaseLines system, as required by Practice Direction 1 of 2023, a situation which poses a significant risk because such information may be hacked and used to commit cybercrimes. Current legislation, such as the Protection of Personal Information Act 4 of 2013, seeks to provide guidelines on how courts should protect confidential information which is included in the pleadings or affidavits. The Practice Directives, however, are silent on measures that should be taken to protect confidential information. Item 18 of the E-Rules and the Draft Amended Magistrates' Courts Rules seek to protect confidential information to a certain extent, but these have not yet been implemented. The article examines current legislation, the respective rules of court, and the approach followed by the courts, in order to determine whether confidentiality does indeed exist in civil proceedings. In addition, it briefly compares the online civil proceedings of South Africa and the United Kingdom to ascertain their differences and similarities.

Participation of the Defender in the Pre-Trial form of Appeal

Relevance. Appeal in criminal proceedings is extended to all stages and proceedings. The right to appeal has been elevated to the rank of a criminal procedural principle and is included in the procedural status of almost every participant. The scale of the implementation of the right to appeal, the lack of uniform practice and its proper provision determine the relevance of research in this area. A special place in the system of ensuring the right to appeal is occupied by the defender, who does not always have both sufficient powers and means of their implementation.The purpose of the study is to determine the optimal legislative regulation of the procedural status of a defender in a pre-trial criminal procedural appeal.Objectives: study of theoretical developments and provisions of criminal procedure legislation in terms of regulating the procedural status of the defender in the field of appeal; development of the author's position on the proper and possible procedural position of the defender in this area.Methodology. Traditional general scientific, private scientific and special methods were used.Results. A set of new knowledge about the procedural potential of a defense lawyer in criminal procedural appeal at the pre-trial stages of criminal proceedings.Conclusions. To optimize the procedural regulation of the defender's status and to ensure proper assistance to the principal in the implementation of appeal actions. It is offered: supplement Part 5 of Article 125 of the Code of Criminal Procedure with the powers of the court to decide on the return of the complaint for its resubmission; determine the specific grounds for leaving the complaint without consideration (adding Article 125 of the Criminal Procedure Code of the Russian Federation with a new part 5.1); supplement the content of Article 123 of the Criminal Procedure Code of the Russian Federation with a new part 1.1 – requirements for drawing up a complaint.In the field of appeal, it is necessary to actively introduce digital resources. To do this, it is necessary to establish additional requirements for the design and content of an electronic complaint, to ensure the preservation of attorney-client confidentiality when forwarding, storing an electronic document, archiving it, etc.

Attorney-client confidentiality in Saudi law: a critical study on the Saudi code of law practice

ABSTRACT Confidentiality is the most basic principle in respect of the lawyer-client relationship. Without the secrecy between lawyer and client, it would be complicated for a lawyer to solidify and establish trustworthy and credible communication with the clients, which might affect their legal representation. In the Saudi legal system, confidentiality is safeguarded under some crucial laws and regulations such as– Code of Law Practice, and the Rule of Professional Conduct for Lawyers. As Islamic law, i.e. Sharia is the primary legal source in the Saudi Arabia, the Code of Law Practice provides the lawyers and clients with the protection of confidentiality as long as there is no palpable violation of Islamic principles. However, there is no formal definition of “the violation of Islamic principles” stated in Article 23 of the Code. This might be problematic and lead to diverse interpretations by courts and authorities which is undermining the protection of confidentiality and sabotaging the lawyer-client relationship. In order to investigate such a labyrinth, this article aims to scrutinize and assess the confidentiality of the clients’ information in the Saudi regulations of the legal profession. It also evaluates the necessity of establishing a precise definition of confidentiality in the Saudi legal system.

Legal Privilege and Third Party Disclosure: A Comparative Analysis of UK and the US Rules

Abstract The rules of evidence in common law courts rely on the weight of evidence that is deduced by the court based on its admissibility and credibility. This is subject to the evidence that has been disclosed by the client to their lawyer either before or after the litigation is commenced in court. The availability of legal professional privilege is a substantive legal right (not a procedural rule) and it enables a person to refuse to disclose certain documents in a wide range of situations. There can be no adverse inference that can be drawn from a valid assertion of legal professional privilege on evidential grounds by the court. Under English law, privilege applies to the advice given by external lawyers and in-house lawyers (acting in their capacity as lawyers) in the case or in contemplation of litigation. Privilege in the US is broader than in the UK and may vary over time and according to locations/context but a privileged communication under UK law may not be privileged in the US. The Attorney-client confidentiality and work-product doctrine are the most common US types of privilege and this will protect investigation material if its primary purpose is to provide information to obtain a legal advice (i. e. if it is not for a business purpose). The research question in this paper is to what extent internal investigations need to be disclosed where the client confidentiality is not applicable and the court orders disclosure. It compares the framework under which privilege can be exercised, and how in the US a different interpretation allows greater margin for client confidentiality when investigations include another party if documents are compiled in contemplation of legal proceedings.

Can Attorneys Guarantee Confidentiality in the Era of Smartphones and Voice-Activated Devices?

Among a lawyer’s many obligations to clients is the duty of confidentiality found in Colorado Rules of Professional Conduct (Colo. RPC) 1.6. Recent news reports make it clear that voice activated devices are always listening and smartphones are always tracking. Confidentiality issues are always present for attorneys who choose to keep a voice activated device in their office potentially listening to conversations with clients. While the tracking apps in smartphones are more a risk to personal privacy, there are attorney-client confidentiality issues as well.

The Lawyer & the Navy Seal: Ethical Dilemmas Surveyed Through Attorney-Client Confidentiality

This essay examines the ethical dilemmas that emerge from the intersection of morality and our professional obligations as attorneys. It argues that moral decision-making is difficult for similar reasons across professions: (1) We have imperfect knowledge about probabilities; (2) it is impossible to wholly and accurately weigh moral decisions since we must make choices ex ante; (3) as professionals, we owe occasionally-conflicting obligations (to clients, to the legal profession, to the public); (4) the concrete mandates of professional ethical codes and the more ambiguous mandates of morality sometimes diverge; and (5) people value moral outcomes differently depending on deeply-held values (e.g., Kantian, Christian, Utilitarian).

SOME PROBLEMS OF ENSURING THE PROTECTION OF ATTORNEY-CLIENT PRIVILEGE IN THE CRIMINAL PROCESS OF RUSSIA AND BELARUS

The article deals with the basic guarantees of protection of attorney-client confidentiality in criminal proceedings. A comparative analysis of the legislative norms of the Russian Federation and the Republic of Belarus regulating the legal regime of attorney-client confidentiality is carried out. The article presents the legal positions of the constitutional Court of the Russian Federation on the issue under consideration, which contributed to the amendments to the criminal procedure law of Russia aimed at providing additional guarantees for the protection of attorney-client confidentiality. The author concludes that the practice of application of the rules containing guarantees of protection of attorney-client confidentiality testifies, on the one hand, to the need to strengthen the protection of citizens' rights to ensure the confidentiality of information provided to the lawyer, and, on the other hand, to the importance of preventing abuse of the right to protection by lawyers and their clients.

Legal Representation of the Impaired: Ethical Implications

Ethical obligations are at the core of good legal representation. Attorneys who represent the elderly or disabled inevitably encounter ethical dilemmas that are a result of their clients' impairment. American law has long recognized the important rights to privacy and liberty and also presumes that an adult is competent and not impaired. The presumption of competency is deservedly difficult to overcome if one is to prove the contrary. Cases like the Supreme Court's Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) and statutes such as the Federal Patient Self-Determination Act, 42 United States Code §§ 1395cc(a)(1) and 1396a(a) (1990) reflect the deeply held belief in the right to make one's own decisions. An adult is presumed to have the capacity to make decisions regarding his own care and legal matters.Numerous legal and ethical issues might arise when a lawyer suspects that a client has diminished capacity, is no longer making wise decisions, becomes incompetent in some areas, or is clearly decisionally incapacitated in many areas. The rules of professional conduct that attorneys are bound to follow then directly come into play. For purposes of this article, the professional ethical rules and statutes discussed will specifically be those of the State of New Mexico where I practice, but they are very similar to the American Bar Association Model Rules and to those of most states. The rules discussed should apply generally to most jurisdictions. The ethical obligations involved in this discussion include, but are not limited to, assessing capacity, effective communication with the impaired client, knowing the impaired client's goals, assessing the client's ability to understand his attorney, avoiding conflicts of interest because of involvement from relatives, attorney-client confidentiality, and the problems associated with seeking a substitute decision-maker such as a guardian or conservator or other surrogate.The following hypothetical is similar to one that I encountered in my practice when working as counsel for Adult Protective Services. There are numerous variations of this not uncommon legal scenario, and I have changed some of the facts to disguise the client and his family. A private attorney called me with concerns, requesting advice. The lawyer was contacted by a client's relatives who believed that the client was incapacitated and no longer making rational decisions. The lawyer had known this client for many years and had helped the client with numerous legal matters. The lawyer told me that the client was quite wealthy and had no spouse or children. The relatives (nephews and nieces) asked the lawyer for assistance in changing his will and in taking steps to protect the client by petitioning to appoint one of the relatives as guardian and conservator of the client. The lawyer was hesitant to do this until he had more evidence from the client's physician, and he was concerned that his old client was saying different things to him in private than he was around his relatives, particularly about the will. His client had previously willed all of his estate to charity. Within days, the lawyer received a telephone call and subsequently a letter from another attorney firing him and stating that he was discharged from any further representation of his old client. The new attorney requested that the lawyer turn over the client's file to him and asked that there be no further contact between the first attorney and the client. This did not sit well at all with the attorney who called me. As per my suggestion, he reported the situation to Adult Protective Services as required by New Mexico law, NMSA 27-7-30, 1978 as amended, and also the District Attorney's office to ask that there be a criminal investigation.The first lawyer had many concerns that his old client was being manipulated by unscrupulous relatives and perhaps by an unscrupulous attorney. If the first attorney had evidence of misconduct by the new lawyer, that misconduct must be reported to the state disciplinary committee. …

Preserving Attorney-Client Confidentiality at the Cost of Another’s Innocence: A Systemic Approach

When a client admits to her lawyer that she is responsible for a crime that someone else has been charged with, it alters the geometry of the attorney-client relationship. A third party has now entered the room triangulating the lawyer's responsibilities to her client, to the innocent party and to the justice system. The idea of revealing a client's private confession is anathema to lawyers trained to carefully guard their clients' secrets. Fidelity to the client, preservation of confidences, and the right to counsel strongly militate in favor of nondisclosure. On the other hand, an innocent person is facing a wrongful prosecution, incarceration and, in some cases, execution. The pressures to protect the confessing client while at the same time preventing harm to a nonclient from a wrongful conviction are at the heart of a complex ethical and practical conundrum. The ABA Model Rules of Professional Conduct allow discretionary disclosure where the lawyer believes that a third party faces "reasonably certain death or substantial bodily harm." And two states have gone so far as to expressly include "wrongful incarceration" in their exceptions to confidentiality. This Article will look at the ethical pathways and the multilayered constitutional and evidentiary analyses in assessing the propriety, necessity and method of disclosure. Other options will be considered that might avoid forcing an attorney to choose between client loyalty and confidentiality or preserving an innocent nonclient from substantial harm, such as transactional immunity for the confessor. Lastly, a review of the implications for the adjudication of innocence claims and systemic reform will be conducted, along with an examination of the constitutional imperatives surrounding the attorney-client and attorney-justice relationships.

Harmonizing Privilege and Confidentiality

This Article focuses on the interplay between attorney-client privilege and attorney-client confidentiality. Contrasting academia's traditional preoccupation with confidentiality issues, the Article highlights the relative importance of privilege issues for clients; typically, clients' real-world problems have less to do with confidentiality than with privilege -- or, more particularly, with the interplay between privilege and confidentiality. These problems ordinarily stem from questions about the scope of privilege and the failure of lawyers and judges to distinguish privilege from confidentiality in key situations. Focusing on these issues, the Article identifies some alternatives that the ABA or individual jurisdictions might take to harmonizing legislatively the two secrecy principles.

The Fallacy That Attorney-client Privilege Has Been Eroded: Ramifications and Lessons for the Bar

It is a common conception that modern courts have eviscerated the doctrine of attorney-client privilege. This Article posits that courts have done no such thing. The perception stems largely from two phenomena: the use of privilege exceptions and privilege exclusions in complex civil practice and criminal prosecutions has increased over time; and the fact that courts, legislatures, and the bar continue to fail to grasp the differences between attorney-client privilege and attorney-client confidentiality. The bar's vision of appropriate secrecy diverges significantly from the vision of legislatures establishing just laws and judges evaluating claims of privilege within the truth seeking litigation process. This Article highlights the differences in vision. That, in turn, helps identify a central problem that ultimately redounds to the disadvantage of clients and the orderly development of the law; namely, the failure of all participants in the legal process to adequately distinguish privilege from confidentiality. The Article discusses some of the alternative responses available to the bar for addressing this failure.

Attorney Client Confidentiality in the Criminal Environmental Law Context: Blowing the Whistle on the Toxic Client

Attorney Client Confidentiality in the Criminal Environmental Law Context: Blowing the Whistle on the Toxic Client

Life‐story fee contracts: When may a criminal defendant demand ineffective counsel?

One glance through the more recent bestseller lists and television schedules reveals the American public's obsessive interest in stories involving bizarre criminal acts, such as the Amy Fisher case, the prosecution of the Menendez brothers, the Lorena Bobbit trial, and the attack on figure skater Nancy Kerrigan.(1) Presently, the public's thirst for sensational crime is being quenched by the Simpson murder case, as the book publishing industry is cranking out truckloads of O.J. Books(2) and television stations are providing not only a front row seat to the trial but a daily rehashing of the events regarding the case. So who profits from these sensational crime stories? Obviously, the book publishing and television industries reap benefits. But what about the defendants--and their attorneys? In the Simpson case, for example, the most notable individual to profit from the murders of Nicole Brown Simpson and Ronald Goldman is Simpson himself. While in jail waiting for his trial to begin, Simpson teamed with Lawrence Schiller to write a book(3) explaining his side of the story, thus giving the defendant a one-sided word with the world without the unpleasantness of cross-examination.(4) Though his book provides him with a voice, more importantly, it fills O.J.'s coffers for his legal defence. Simpson, who hired a dream team of attorneys to represent him,(5) is spending approximately $60,000 a week in legal fees.(6) Although Simpson was worth more than a few million dollars before being jailed in June of 1994,(7) he is using the proceeds from his book(8) to staunch [the] checking-account hemorrhage(9) that has resulted from retaining the highly expensive and talented counsel. Arguably, Simpson is able to afford his legal defense dream team as a result of the book publishing and television industries' attempt to satisfy the American public's insatiable thirst for sensational crime. As a general rule, at any time before or during the criminal proceedings, a criminal defendant may sell his or her life-story rights directly to a literary or television agency and use the proceeds to finance his or her defense.(10) Clearly, Simpson has capitalized on this rule. Problems arise, however, when an indigent criminal defendant retains private counsel by means of a contract that grants the attorney the publication rights and potential profits to the defendant's life-story in lieu of attorneys' fees. These types of contracts create a potential conflict of interest between the attorney's financial interests and the attorney's professional responsibility to his or her clients. For example, in United States v. Hearst,(11) Patricia Hearst was arrested for bank robbery, and she was represented by F. Lee Bailey at trial. During the course of the proceedings, Bailey contracted to write a book about the trial, thus raising questions of potential or actual conflict of interest. Hearst was convicted, and she immediately appealed, claiming that Bailey's book contract created a conflict of interest that deprived her of her sixth amendment right to the assistance of counsel. Hearst charged that Bailey (1) failed to seek a continuance, so public interest would not cool and competing authors would not get the jump on him; (2) failed to seek a change of venue, because publicity would be maximized by a trial in San Francisco, a media center; and (3) put her on the witness stand, so her story would go on the public record and he would not be constrained by the attorney-client confidentiality rules. As the Hearst case illustrates, an attorney operating under a publication rights fee contract may be tempted to subordinate the interests of the client to his or her own anticipatory gain because the only compensation the attorney will receive will come from the commercial exploitation of the defendant's life-story. The attorney's financial stake in the literary contract might cause the attorney to hold a lengthy and sensational trial at any price; to create as much trial publicity as possible; and, as a result, to increase the financial potential of the acquired publication rights and the personal monetary benefits flowing therefrom. …

Briefs: Attorney‐client confidentiality

Briefs: Attorney‐client confidentiality