Certified Legal Professional (CLP) Practice Exam

Is an attorney's refusal to provide information about a former client's medical condition proper if the attorney invokes both attorney-client privilege and duty of confidentiality?

1. Yes, because turning over the information could subject the attorney to discipline for violating Rule 1.6

2. Yes, because the privilege means the attorney cannot be forced to testify against the client

3. No, because the information is not a communication and therefore is not protected by the privilege

4. No, because the client has waived the privilege

The correct answer is: No, because the information is not a communication and therefore is not protected by the privilege

The correct choice points out a critical distinction between what constitutes protected information under attorney-client privilege and what falls outside that protection. The essence of attorney-client privilege is to protect confidential communications made between a client and their attorney. However, not all information, particularly factual information, qualifies for such protection. In this case, a former client's medical condition may not necessarily be regarded as a communication made by the client to the attorney. If the information in question is seen more as a fact—such as the existence of a medical condition—rather than a discussion or reflection of the client’s thoughts, ideas, or intentions, then it would not be considered privilege communication. This separation is vital because it determines the extent to which an attorney can refuse to disclose information. Additionally, the concepts of duty of confidentiality and attorney-client privilege serve different purposes. While the duty of confidentiality protects a wide range of information relating to the representation, attorney-client privilege specifically shields only those communications made in confidence for the purpose of seeking legal advice. Thus, if the medical condition is factual information rather than a communication, it may fall outside the realm of privileged information. This nuanced understanding is essential for legal professionals, as it affects their obligations in terms of what they can disclose and under what circumstances