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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arkansas Legal Ethics

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of Arkansas Rule

1.6:101      Model Rule Comparison

The Arkansas Rule deviates in two ways from the Model Rules:

1)   In Rule 1.6(b)(1), Arkansas permits an attorney to disclose confidential information ψto prevent the client from committing a criminal act.Σ

2)   Arkansas removed a sentence on a noisy withdrawal from the Comment and made it Rule 1.6(c).

1.6:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

1.6:200   Professional Duty of Confidentiality

1.6:210      Definition of Protected Information

The scope of confidentiality includes all information relating to the representation, regardless of the source, and regardless of whether it was gained before, during or after the representation. Confidentiality may even attach when the attorney is considering whether to establish the relationship with prospective clients. See Scope, Paragraph [3]. The confidentiality provisions continue after termination of the representation and continue even after the death of the client. Likewise, an attorney is to protect confidential communications when changing professional associations. See Rule 1.9, Comment [9].

The scope of the phrase "relating to representation" is unclear. See Nance v. Arkansas Dept. of Human Services, 316 Ark. 43, 870 S.W. 2d 721 (1994). Likewise, it is unclear whether the ethical standard may be used to bar the testimony of an attorney against a former client. Id.

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

An attorney has a professional responsibility to assert the standard of confidentiality and refuse to disclose documents or information that come within the scope of Rule 1.6 to a court or a government agency. American Bar Association Formal Opinion 94-385. However, once compelled by a court of proper jurisdiction to reveal, the attorney should disclose rather than be personally subject to judicial sanctions. See Comment [20].

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

Arkansas has no case law or authority on this topic.

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

See 2.2:400.

1.6:250      Information Imparted in Lawyer Counseling Programs

Arkansas has no case law or authority on this topic.

1.6:260      Information Learned Prior to Becoming a Lawyer

Arkansas has no case law or authority on this topic.

1.6:300   Exceptions to Duty of Confidentiality--In General

Rule 1.6(b) does permit the traditional exceptions: the pending commission of a crime and attorney-client disputes, such as malpractice claims, suits for legal fees, claims of ineffective assistance of counsel, and disciplinary charges. Disclosure should be no greater than the lawyer reasonably believes necessary to prevent the criminal act or to vindicate the attorney. Comment, Paragraphs [14 & 18].

This rule does not discuss or attempt to balance (a) any common law duty that the attorney may owe to third parties to prevent harm to them, (b) the attorney's obligation under criminal statutes, or (c) the attorney's perceived obligation to humanity or to a higher authority. See Scope, Paragraph [2]; See 3.4:210. The lawyer's exercise of discretion not to reveal information should not be subject to reexamination. Scope, Paragraph [8].

An attorney who withdraws from representation is not permitted to disclose confidential communications, but may notify appropriate individuals of the withdrawal and may disaffirm or withdraw any opinions or documents prepared in the course of the representation. AR Rule 1.6(c).

1.6:310      Disclosure to Advance Client Interests or with Client Consent

Rule 1.6(a) allows disclosure of confidential information after consent by the client and when impliedly necessary to carry out the representation.

1.6:320      Disclosure When Required by Law or Court Order

See 1.6:220.

1.6:330      Disclosure in Lawyer's Self-Defense

See 1.6:300.

1.6:340      Disclosure in Fee Dispute

See 1.6:300.

1.6:350      Disclosure to Prevent a Crime

Arkansas permits, but does not require, an attorney to disclose confidential information to prevent a crime. Any disclosure should be limited to what is reasonably necessary. Comment [14]. The attorney's exercise of discretion to disclose or not should not be subject to subsequent evaluation, at least in the disciplinary setting. Scope, Paragraph [8].

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

Arkansas permits, but does not mandate, disclosure to prevent death or serious bodily injury. See 1.6:300, 1.6:350.

1.6:370      Disclosure to Prevent Financial Loss

AR Rule 1.6(b)(1) permits an attorney to disclose to prevent a criminal act, but does not permit disclosure to prevent the non-criminal though fraudulent intentions of a client. The lawyer must maintain in confidence all instances of fraud by a client, whether past, continuing or prospective.

However, the attorney may not counsel or assist a client in the commission of fraud. See Rule 1.2. The attorney may terminate representation of a client who intends fraudulent acts. See Rule 1.16. Likewise, the attorney may terminate the relationship of a client who used the lawyer's services in the past to commit fraudulent acts. The attorney may not assist a client in committing fraud on a third party. See Rule 4.1. Finally, the attorney must be candid with the tribunal to avoid assisting a fraudulent act by the client. An attorney who offers material evidence to a tribunal and comes to know of its falsity must ultimately make disclosure. See Rule 3.3.

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

See 3.4:200.

1.6:390      Confidentiality and Conflict of Interest

Arkansas has no case law or authority on this topic.

1.6:395      Relationship with Other Rules

Confidentiality may be modified when the intermediation provisions of Rule 2.2 are employed. See 2.2:400.

1.6:400   Attorney-Client Privilege

Distinct from, and narrower than, the ethical requirement of confidentiality is the evidentiary rule of attorney-client privilege. By statute in 1975 and by court order in 1986, see Ricarte v. State, 290 Ark. 100, 717 S.W. 2d 488 (1986), Arkansas has adopted the Uniform Rules of Evidence. Rule 502 protects confidential communications between the attorney and the client. The client has an evidentiary privilege to refuse to disclose confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. Likewise, the client may prevent any other person from disclosing the confidential communications. Rule of Evidence 502(b). The privilege is designed to secure subjective peace of mind for the client. Ark. Nat. Bank v. Cleburne Co. Bank, 258 Ark. 329, 525 S.W.2d 82 (1975).

The privilege may be claimed by the client, by his guardian, the personal representative of a deceased client, or the representative of a corporate client or other organization. The attorney who represented the client at the time of the communication is presumed to have authority to claim the privilege, but only on behalf of the client. Some authority indicates that the attorney has the obligation to assert the evidentiary privilege on behalf of the client. Sikes v. Segers, 266 Ark. 654, 587 S.W. 2d 554 (1979).

1.6:410      Privileged Communications

A communication between attorney and client is confidential if, when made, it was not intended to be disclosed to third persons other than when necessary for the rendition of professional legal services for the client. Rule of Evidence 502(a)(5).

The privilege protects statements made by the attorney and the client to the other. Byrd v. State, 326 Ark. 10, 929 S.W. 2d 151 (1996) (letters from attorney to client discussing status of case). It covers communications between the client and a representative of the lawyer. See Parkman v. State, 294 Ark. 339, 742 S.W.2d 927 (1988) (private investigator was not hired by attorney and was not a representative). The privilege covers written statements given by potential defendants and employees to counsel. Courteau v. St. Paul Fire & Marine Ins. Co., 307 Ark. 513, 821 S.W.2d 45 (1991) (medical malpractice litigation). The client's communications to the attorney as they relate to past crimes, as distinguished from crimes planned in the future, are privileged. Lewis v. State, 265 Ark. 132, 577 S.W.2d 415 (1979).

The privilege protects communications, not acts of either the attorney or the client. Nance v. Arkansas Dept. of Human Services, 316 Ark. 43, 870 S.W. 2d 721 (1994) (former attorney permitted to testify as to client's treatment of children and home conditions); Sikes v. Segers, 266 Ark. 654, 587 S.W.2d 554 (1979). The privilege does not extend to communications between the attorney and third parties in the course of the attorney's representation of the client. Ark. Nat. Bank v. Cleburne Co. Bank, 258 Ark. 329, 525 S.W.2d 82 (1975). The evidentiary rule has no application outside court proceedings. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).

1.6:420      Privileged Persons

A client is a person, public officer, corporation or other entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him. A lawyer is a person authorized to engage in the practice of law in any state or nation. Rule of Evidence 502(a)(1,3). Communications involving representatives of the client or the attorney are also protected.

1.6:430      Communications "Made in Confidence"

The attorney-client privilege is limited to those confidential communications. Kinkead v. Union National Bank, 51 Ark. App. 4, 907 S.W. 2d 154 (1995) (discussions between bank officials and attorney were privileged). No protection is given to statements made in public, disclosed by the client to others, or intended for disclosure to others. Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992).

1.6:440      Communications from Lawyer to Client

Communications from the lawyer to the client are equally protected. See 1.6:410.

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

Arkansas has no case law or authority on this topic.

1.6:460      Legal Assistance as Object of Communication

Communications between an attorney and a client which do not involve professional legal services are out the scope of the evidentiary protection. See 1.6:420.

1.6:470      Privilege for Organizational Clients

The issue of confidentiality in regard to the corporate client is discussed in Pamela Taylor, Attorney-Client Privilege: A Guide for Corporations, 7 U. ARK. LITTLE ROCK L.J. 115 (1984).

1.6:475      Privilege for Governmental Clients

Arkansas Rule of Evidence 502(d)(6) provides that there is no privilege ψas to a communication between a public officer or agency and its lawyers unless the communication concerns a pending investigation, claim, or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.Σ

1.6:480      Privilege of Co-Clients

Arkansas Rule of Evidence 502(d)(5) provides that there is no privilege ψas to a communication relevant to a matter of common interest between or among two [2] or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.Σ See Torian v. Smith, 263 Ark. 304, 564 S.W. 2d 521 (1978) (attorney was acting for both the executor and the beneficiaries under the will and was permitted to testify to confidential communications.) See 2.2:400.

1.6:490      Common-Interest Arrangements

The privilege covers confidential communications between attorneys, representatives and multiple parties in a pending action, when concerning a matter of common interest to the action. Arkansas Rule of Evidence 502(b).

1.6:495      Duration of Attorney-Client Privilege

Arkansas has no controlling law on this issue, but in the case of the late Arkansas attorney Vincent Foster, the United State Supreme Court held that the attorney client privilege covered statements that he had made to his attorney in the days prior to his death. Swidler & Berlin v. United States, ___ U.S. ___, 118 S.Ct. 2081 (1998).

1.6:500   Waiver of Attorney-Client Privilege

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

The client may waive the privilege. Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).

1.6:520      Waiver by Subsequent Disclosure

Arkansas has no case law or authority on this topic.

1.6:530      Waiver by Putting Assistance or Communication in Issue

Arkansas has no case law or authority on this topic.

1.6:600   Exceptions to Attorney-Client Privilege

Arkansas Rule of Evidence 502 states six specific exceptions to the rule of attorney-client privilege: (1) if the services of the attorney were sought or obtained to enable anyone to commit or plan a crime or fraud; (2) if the communication is relevant to an issue between parties claiming through the same deceased client of the attorney; (3) if the communication is relevant to an issue of the breach of duty by the lawyer to his client, or vice versa; (4) as to a communication concerning an attested document to which the attorney was the attesting witness; (5) as to a communication relevant to a matter of common interest between two or more clients; and (6) as to communications between a public officer or agency and its attorney. See 1.6:475, 1.6:480.

The attorney-client privilege is narrowly construed, whereas the state Freedom of Information Act, Ar. Code —29-19-101 et seq., is broadly construed. In the absence of a specific legislative exception incorporating the attorney-client privilege, documents prepared by government attorneys are not automatically excluded from the FOIA disclosure provisions. Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987).

The work product of private attorneys hired by governments is also subject to the FOIA provisions. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). See Lawrence W. Jackson, Note, Working Papers and Litigation Files of Attorneys Hired by Public Entities are Subject to Disclosure, 13 U. ARK. LITTLE ROCK L.J. 725 (1991). See 1.6:740.

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

Arkansas Rule of Evidence 502(d)(2) provides that there is no privilege ψas to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.Σ

1.6:620      Exception for Client Crime or Fraud

Arkansas Rule of Evidence 502(d)(l) provides that there is no privilege ψthe services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.Σ

1.6:630      Exception for Lawyer Self-Protection

Arkansas Rule of Evidence 502(d)(3) provides that there is no privilege ψas to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer.Σ See Corzine v. Forsythe, 263 Ark. 161, 563 S.W. 2d 439 (1978) (attorney, who was accused of a breach of duty to his client, was permitted to testify to privileged communications).

1.6:640      Exception for Fiduciary-Lawyer Communications

The privilege covers confidential communications made by representative of the client. Ark. Rule of Evidence 502(b). The privilege may be asserted by the guardian or the client or the personal representative of a deceased client. Ark. Rule of Evidence 502(c). See 1.6:400, 1.6:495.

1.6:650      Exception for Organizational Fiduciaries

Arkansas has no case law or authority on this topic.

1.6:660      Invoking the Privilege and Its Exceptions

See 1.6:400.

1.6:700   Lawyer Work-Product Immunity

1.6:710      Work-Product Immunity

Arkansas Rule of Civil Procedure 26(b)(3) permits a party to obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial, provided they are relevant to the issues in the pending action and are otherwise discoverable upon a two part showing. The party seeking discovery must demonstrate (1) a substantial need for the materials in the preparation of his case, and (2) an inability without undue hardship to obtain the substantial equivalent of the materials by other means.

1.6:720      Ordinary Work Product

Ordinary work product is protected by a qualified immunity. As discussed in 1.6:710, that immunity can be overcome upon a two part showing. See Carlton Bailey, Discovery Practice in Arkansas (1994) 9-13. No Arkansas case law discusses the qualified immunity.

1.6:730      Opinion Work Product

Ark. R. Civ. Pro. 26(b)(3) provides more protection for opinion work product by specifically stating that "in ordering discovery of such materials . . ., the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation."

1.6:740      Invoking Work-Product Immunity and Its Exceptions

If the information was prepared by an attorney for a governmental client, the requesting party may be able to obtain the documents under the provisions of the Arkansas Freedom of Information Act, Ar. Code —25-19-101. See City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W. 2d 275 (1988) (legal memoranda on pending litigation prepared by and in possession of outside counsel of city subject to disclosure); Scott v Smith, 292 Ark. 174, 728 S.W. 2d 515 (1987) (documents from the litigation files of attorney for state agency subject to FOIA disclosure). But a specific exception protects the papers of the Attorney General, his staff and outside consultants retained by him. Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). The public documents may be requested by any citizen and without any requirement to show need or relevancy, may be obtained more quickly and with less attention than in normal discovery, and may be utilized without limitations. See John J. Watkins, The Arkansas Freedom of Information Act (2nd ed. 1994) 334-338. See 1.6:600.

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

The privilege may be lost or circumvented if the client communicates the protected information to a third party. See Carlton Bailey, Discovery Practice in Arkansas (1994) 10.

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

Arkansas has no case law or authority on this topic.

1.6:770      Exception for Crime or Fraud

Arkansas has no case law or authority on this topic.