rose409 wrote:Hi all - quick, last-minute question... For confidentiality in California, must a lawyer disclose information in the case of a court order? Thank you so much.
Here's an indirect answer that I hope you, and anyone else, can take to the exam as a last minute advice:
It's unlikely you'll memorize all the nitty gritty nuances of the law. I certainly did not when I passed the CA bar in July. Here's what you need to recognize:
What these graders are looking for--this "lawyer-like" thinking, is routinely demonstrated without knowing the exact law.
So, as I sit here, I do not know the answer to the question you posed. If such an issue appears on an essay fact pattern, here's what I would've done: I would've attempted to analyze the crap out of it. If I don't know it, that means it's a big enough issue for the graders to see you demonstrate lawyer-like analysis. I would bet this is one of those grey-area issues. As with many things in law, nothing is so clear-cut.
On the one hand, a lawyer's confidentiality with its clients are highly valued in our society. In fact, it's a building block of how our system works. Without such confidentiality, why should a client trust lawyers? How can a lawyer advocate for a client that's not truthful? Anything a client tells a lawyer, absent the exceptions that I very much recall from my 2-3 months of studying (involves a bad crime or substantial bodily injury to another, etc. etc.) is not present here. Or maybe it is, and you just haven't told me, and this would be a lot easier because all I have to write is "hell yes he must disclose it. even without a court order, a lawyer likely would need to break confidentiality if it [insert exception]." Since you included a court order as a specific detail, it's more likely that it doesn't meet one of the common exceptions that we learn during bar prep. So there's a strong argument for a lawyer to defy a court order and perhaps even take the sanction in order to preserve confidentiality.
Alternatively, assuming an unbiased judge where no facts have suggest a interference with the judge's objectivity (a helpful fact to further analyze/make an argument here), the judge likely has good basis for the court order. Perhaps the opposing party has strongly produced evidence that a disclosure is warranted. Does the evidence
closely relate to the common exceptions? This is where I draw similarities to the common exceptions. E.g. we might break confidneitality because someone is about to get really hurt/die. We as a society dont want that. Do our facts somehow resemble this? Maybe not.
On balance, the lawyer could go either way--disclose because of the court order, or preserve confidentiality and take the sanction.
What I sloppily demonstrated is that you need to go into this bar exam prepared to think like a lawyer. You have undoubtedly learn the very basics of the law. You learn why there's a higher burden for criminal claims. You learn that tort wants to make victims whole. You learn that breaches of contracts are to make parties as if there was perfect performance. Use the facts given to you to draw this analysis.
the bar does not try to trick you. What facts are related to what issue will be obvious. Use those facts. Analyze like a lawyer. Big issues will have strong arguments on both sides. You might side with one argument over the other based on policy, or based on a case you somehow rememebr frmo law school where it's factually similar. Or, you might not be able to draw any conclusion confidentally. in which case, you're porbably not expected to--do so anyways.
ok, back to my brief.
