A lawyer represents a client seeking a variance from a local zoning board. During a public hearing, a board member asks the client a question about their financial stability, which the client has previously discussed confidentially with the lawyer. The client looks to the lawyer for guidance. What is the lawyer's most appropriate response?
- AThe lawyer should instruct the client to answer truthfully, as it is a public hearing.
- BThe lawyer should advise the client not to answer, citing the duty of confidentiality.
- CThe lawyer should ask for a recess to consult with the client about whether to answer.
- DThe lawyer should object to the question as it invades the attorney-client privilege.
Show answer & explanationAnswer & explanation
Correct answer: C. The lawyer should ask for a recess to consult with the client about whether to answer.
The information is confidential. While attorney-client privilege might apply, the lawyer's immediate duty is to protect the client's interests and allow the client to make an informed decision about waiving confidentiality. Requesting a recess to consult allows the lawyer to advise the client on the implications of answering or refusing to answer, without unilaterally asserting privilege or instructing disclosure.
Why the other options are wrong
- A. Instructing the client to answer truthfully without consultation could lead to the unintended waiver of confidentiality or privilege, potentially harming the client's interests.
- B. Instructing the client not to answer without consultation could be detrimental to the client's case or appear uncooperative to the board.
- D. Objecting to the question as invading privilege might be appropriate, but a recess allows for client consultation, which is paramount.
Client Consultation on Disclosure
When a lawyer's confidential information is sought in a public setting, the lawyer's primary duty is to consult with the client to allow them to make an informed decision regarding disclosure or assertion of privilege.
- Client controls the decision to waive confidentiality/privilege.
- Lawyer must provide sufficient information for informed consent.
- Recess allows for proper consultation.
Memory trick: Pause, Consult Client, Then Act.