John Stinson is contemplating ending his ten-year marriage to Audrey, but before he does, he wants to find out how he can keep some martial assets out of the marital pot. He has a buddy who he bowels with on Thursday nights that just happens to be a family law attorney. After a few games, John, over a few beers, asked Ethan, the attorney, some "I have a friend" type questions. Approximately two

Question

weeks later, armed with the information he had gotten from Ethan to his hypothetical questions, John filed for divorce. Audrey's lawyer contacted Ethan as directed by John who said that Ethan was representing him in this matter. When contacted by Audrey's attorney, Ethan objected to being questioned regarding information sought because he was not John's attorney, but had merely spoken with him in a hypothetical nature. Audrey's attorney insisted that he answer the questions asked, some of which were discussed with John at the bowling alley.

Under what circumstances, if any, can Ethan share his and John's conversation with Audrey's attorney?

Answer 1

Student should to discuss the protected communications between attorney and client:
a) Attorney-client privilege (and work product): The privilege is in the law of evidence that applies to proceedings in which the lawyer is called as a witness or required to produce evidence relating to a client. The privilege belongs to the client and prevents the attorney from disclosing attorney-client communications subject to limited exceptions;
b) The rule of attorney-client confidentiality is a code of ethics that refers to the attorney's duty not to reveal information relating to testimonial disclosures of client information in court proceedings.
For the duty and the privilege to apply, the client must have communicated information to the attorney (or the attorney's paralegal) in confidence for the purpose of obtaining legal advice on a state-by-state basis. The attorney can usually reveal this confidential information:
1. If the client consents to the release of the information, best in writing, when, to whom, and under what circumstances
2. If the attorney reasonably believes that client is about to engage in criminal activity that will result in serious bodily harm or death
3. If a third person, such as a parent or friend, who is not a member of the family law team is present when the client "confides" in his or her attorney or paralegal, or when communications with the attorney is overheard
4. To the extent necessary to establish a claim or defense on the lawyer's behalf
5. If necessary to rectify a client fraud in which the lawyer's services were used without his or her knowledge

In this question the student should attempt to determine if in fact there was an attorney-client relationship between John and Ethan to invoke the privilege.