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EPISODE SUMMARY

Confidentiality is broader than attorney-client privilege. The professional duty of confidentiality generally prohibits a lawyer from revealing information relating to representation unless the client gives informed consent, disclosure is impliedly authorized, or an exception applies. The duty applies to information from any source and continues after representation ends.

Attorney-client privilege is narrower but powerful in litigation. It protects confidential communications between attorney and client made for the purpose of seeking or providing legal advice. It does not protect underlying facts.

Work product protects materials prepared in anticipation of litigation by or for a party or representative. Ordinary work product may sometimes be discovered on a showing of substantial need and undue hardship. Opinion work product receives stronger protection.

A lawyer may disclose confidential information with informed consent or when impliedly authorized to carry out representation. Several exceptions also permit disclosure, including preventing reasonably certain death or substantial bodily harm, preventing or rectifying certain client crimes or frauds involving use of the lawyer’s services, obtaining ethics advice, defending the lawyer, complying with law or court order, and limited conflict-check disclosures.

Many exceptions are permissive. A lawyer should not over-disclose. Even when disclosure is allowed, the lawyer should reveal no more than reasonably necessary.

A lawyer may not assist client crime or fraud. The lawyer may explain legal consequences and assist good-faith legal analysis, but may not help the client deceive others or misuse legal services.

For organizational clients, the lawyer represents the entity, not automatically its constituents. Serious wrongdoing within the organization may require reporting up, and in limited circumstances reporting out.

Prospective clients receive confidentiality protection even if no representation follows. Former-client confidentiality continues indefinitely, subject to limited exceptions and the generally known limitation.

The central lesson is disclosure judgment. Protect client information unless a rule permits or requires disclosure, distinguish confidentiality from privilege and work product, and disclose only what is reasonably necessary.