Law Commons^™

Psychotherapist-Patient Privilege; Patient's Dangerous Condition; Confidentiality; Legal Duty To Warn Potential Victim; Tarasoff V. Regents Of University Of California, Robert E. Burns

Akron Law Review

In placing a legal duty to warn on the psychotherapist, the California supreme court followed the modern trend in tort law by recognizing the subordination of the patient's interest in the confidentiality of the psychotherapist-patient relationship to both the public interest, and to what the court determines to be the patient's own best interest. Under these confined circumstances the therapist acquires a limited right to disclose pertinent information to any person who may have a legitimate interest in his patient's health.' However, certain restrictive guidelines have been placed on the disclosure of such information. In Berry v. Moench, the Utah …

Breach Of Medical Confidence In Ohio, Craig E. Johnston

Akron Law Review

Fortunately, the patchwork of state and federal statutory, administrative, and case law has greatly limited unrestricted disclosure of medical secrets through the threat of civil and criminal liability. While the law governing the disclosure of medical information sorely lacks a comprehensive approach, one overriding principle emerges from this patchwork: the concern for confidentiality represented in the Hippocratic Oath is alive in Ohio and should guide the release of any medical secrets in the state. There are several statutes that regulate the release of certain types of medical information. For example, information concerning patients suffering from alcohol or drug abuse is …

Legal Nature And Contractual Conditions In Know-How Transactions, Carlos M. Correa

Georgia Journal of International & Comparative Law

No abstract provided.

The Attorney General As Lawyer (?): Confidentiality Upon Resignation From Cabinet, Andrew Flavelle Martin

Dalhousie Law Journal

The unique role of the attorney general raises several special issues oflegal ethics. This paper addresses one previously unaddressed: whether it is appropriate for the attorney general to publicly announce his or her reasons for resighing from Cabinet. Unlike other ministers, the attorney general is almost always a practicing lawyer and thus bound not only by Cabinet solidarity and Cabinet confidentiality, but also by the lawyer's professional duty of confidentiality and by solicitor-client privilege. The paper begins by canvassing a hierarchy ofreasons for a principled resignation and the rare historical examples where these have occurred. It then turns to the …

Antidumping - Redefinition Of Confidentiality And Right Of Judicial Review - Institution Of A New Form Of Relief: Timex Corporation V. Council And Commission Of The European Communities, Carlton L. Kell

Georgia Journal of International & Comparative Law

No abstract provided.

Secret Arbitration Or Civil Litigation?: An Analysis Of The Delaware Arbitration Program, Jores Kharatian

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The Delaware Arbitration Experiment: Not Just A “Secret Court”, Jessica Tyndall

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program , Thomas J. Stipanowich

The Journal of Business, Entrepreneurship & the Law

The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …

How Do You Rate Your Lawyer? Lawyers’ Responses To Online Reviews Of Their Services, Laurel A. Rigertas

St. Mary's Journal on Legal Malpractice & Ethics

With the proliferation of opportunities for consumers to review a variety of services on the Internet, it is only a matter of time until more clients review their attorneys’ services on the Internet. This raises a variety of potential ethical and public policy issues. First, what can attorneys do to try to control their online reputations? Second, if a client posts negative comments about an attorney’s services on a public Internet forum, can the attorney respond on that forum without breaching the duty of confidentiality and, if so, how? Finally, when settling a dispute with a client, may an attorney …

The Organizational Ombudsman's Quest For Priviledged Communications, Kendall D. Isaac

Hofstra Labor & Employment Law Journal

The role of organizational ombudsman has grown tremendously in the past couple of decades. Organizations have come to rely upon their ombuds offices to provide value-added dispute resolution services aimed at improving the corporate ethical and cultural environment while simultaneously staving off unwanted turnover and potential litigation from disgruntled employees. While employees have enjoyed ‘being heard’ by their ombudsman, the ombudsmen have struggled to keep the information they have heard confidential and away from the public forum via subsequent litigation and motions to compel them to disclose this information. This article explores the current state of the ombudsman confidentiality privilege, …

A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler

St. Mary's Law Journal

This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …

Real To Reel: The Hirsch Case And First Amendment Protection For Film-Makers' Confidential Sources Of Information , Stephen F. Rohde

Pepperdine Law Review

No abstract provided.

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

The Use Of Aviation Accident Reports By Civil Litigants: The Historical Development Of 49 U.S.C. Section 1441(E), Walter A. T. Welch Jr., John E. Faulk

Pepperdine Law Review

When aviation accidents occur, the National Transportation Safety Board conducts an investigation to determine the conditions, circumstances, and ultimately the probable cause of the accident. There is a federal statutory privilege which renders these reports, as well as testimony from the attending investigator, inadmissible as evidence in any suit or action arising from the accident. However, certain judicially created exceptions have arisen which permit portions of the report and certain investigator testimony to be admitted into evidence. The authors delineate and analyze these exceptions as they discuss the trend toward increased report and testimony admissibility. The authors conclude with a …

Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality Be A Function Of The Court In Which The Litigation Is Pending?, Rebecca Callahan

Pepperdine Dispute Resolution Law Journal

The article presents information on mediation confidentiality. Confidentiality protections are available to California litigants depending on whether the litigants are in state or federal court. It depicts that California courts provide protection only when disputants utilize mediation for resolving their differences and also focuses on the evidence exclusion provision in which the privilege held by participant acts as bar to compel discovery without everyone's consent.

Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning

St. Mary's Journal on Legal Malpractice & Ethics

This Article will examine the ethical issues posed by lawyers’ use of social media platforms in light of the ABA Ethics Commission 20/20 changes to the Model Rules of Professional Conduct. Social networking has had a transformative effect both on the way society shares information and on the legal profession. Much of the discussion to date focuses on the discovery and use of evidence from social media sites in criminal cases and civil litigation, but attention must also be directed to the ethical quandaries posed by the legal profession’s use of social media. This Article will consider issues such as …

The Psychotherapist And The Attorney/Client Privileges As They Arise In Civil Rights Disputes, Lewis M. Wasserman

Touro Law Review

This article briefly reviews the elements of the psychotherapist-patient and attorney-client privileges and how these privileges may be waived in the context of federal civil rights litigation.

Privacy And Pension Plan Records: Is Self-Regulation Sufficient?, Michael J. Francis

Marquette Elder's Advisor

The confidentiality of employee' pension information is being threatened by changes in the design of qualified retirement plans and advances in data-processing and Internet technology. Despite the passage of recent laws aimed at protecting privacy, the author suggest that more may need to be done to ensure that personal financial information remains secure.

Lawyers And Social Media: The Legal Ethics Of Tweeting, Facebooking And Blogging, Michael E. Lackey Jr., Joseph P. Minta

Touro Law Review

No abstract provided.

Friending And Following: Applying The Rules Of Professional Conduct To Social Media, Andy Taylor

University of Arkansas at Little Rock Law Review

Despite the strong tradition in the law of not advertising for legal services, the Model Rules of Professional Conduct as well as the Arkansas Rules of Professional Conduct recognize that the interest in expanding public information about legal services trump that tradition. However, that is not the case in many states where, in some cases, lawyers have been advised to avoid certain types of interactive websites or risk what has been dubbed a "one-click ethics violation."

This article seeks to explain how attorneys can use social networking sites without violating any rules of professional conduct. Additionally, the article proposes a …

California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon

Pepperdine Dispute Resolution Law Journal

Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.

When Mediation Confidentiality And Substantive Law Clash: An Inquiry Into The Impact Of In Re Marriage Of Kieturakis On California's Confidentiality Law, Annalisa L. H. Peterson

Pepperdine Dispute Resolution Law Journal

Mediation confidentiality laws play a critical role in allowing mediation to remain a viable process for parties to discuss the issues involved in their dispute, exchange information, and potentially reach a settlement before trial. Without certain guarantees as to the confidential nature of such a meeting, no savvy party or attorney would agree to provide information that could later be turned against him at trial, and many valuable opportunities (as measured in time, cost, reputation, relationship, etc.) for resolution would be lost. However, some parties to mediated disputes either do not reach resolution, or later contest a mediated agreement in …

Guardians Ad Litem Do Not Belong In Family Mediations , Suzanne J. Schmitz

Pepperdine Dispute Resolution Law Journal

A Guardiam Ad Litem (GAL) is valuable to the resolution of custody disputes because the GAL evaluates the facts concerning the dispute and recommends to the court what are the best interests of the child.5 Mediation is valuable because parents can determine their own decisions regarding their children. However, where appointing a GAL threatens the value of mediation, there is a risk to mediation. A simple solution to avoid this threat is to refrain from appointing a GAL until after mediation has been attempted or, if one is appointed prior to mediation, to excuse the GAL from mediation. This article …

Chain-Link Confidentiality, Woodrow Hartzog

Georgia Law Review

Disclosing personal information online often feels like
losing control over one's data forever; but it does not have
to be that way. This Essay proposes a "chain-link
confidentiality" approach to protecting online privacy.
One of the most difficult challenges to guarding privacy in
the digital age is the protection of information once it is
exposed to other people. A chain-link confidentiality
regime would link the disclosure of personal information
to obligations to protect that information as the
information moves downstream. It would focus on the
relationships not only between the discloser of information
and the initial recipient but also between …

From Trusted Confidant To Witness For The Prosecution: The Case Against The Recognition Of A Dangerous-Patient Exception To The Psychotherapist-Patient Privilege, Deborah Paruch

The University of New Hampshire Law Review

[Excerpt] “In 1996, in Jaffee v. Redmond, the U.S. Supreme Court, pursuant to the authority set forth in Federal Rule of Evidence 501, recognized a psychotherapist-patient privilege in the federal courts. In doing so, the Court acknowledged the essential role that confidentiality plays in a therapist-patient relationship and also recognized the important role that psychotherapy plays in the mental health of the American citizenry. However, in dicta set out in a footnote near the conclusion of the opinion (footnote 19 of the opinion), the Court suggested that the privilege might not be absolute, that it might need to “give way …

Confidentiality Explained: The Dialogue Approach To Discussing Confidentiality With Clients, Elisia M. Klinka, Russell G. Pearce

San Diego Law Review

This Article offers an alternative dialogue approach. Rather than view the issue of explaining confidentiality either as a strategy for gaining client trust or an obligation necessary to comply with certain legal obligations, we propose understanding it as a key element in creating a relationship of dialogue grounded in honesty and mutual respect.

In doing so, we build on the work of the late Fred Zacharias, whose scholarship in this area provides both pathbreaking empirical insights and unwavering commitment to respecting client dignity. Among Zacharias’s contributions are his oft-cited empirical study suggesting that lawyers wrongly assume that clients would not …

Taking The Ethical Duty To Self Seriously: An Essay In Memory Of Fred Zacharias, Samuel J. Levine

San Diego Law Review

This essay delineates a three-tiered approach that incorporates not only the lawyer’s duty to the client and to society, but also the lawyer’s obligation to take into consideration the duty to self, which includes fidelity to the lawyer’s personal ethical values and commitments. In addition, rather than placing the various interests in hierarchical opposition, requiring that one duty invariably prevail over the others, the three-tiered approach looks to consider ways in which competing interests might balance or, at times, be reconciled with one another. To illustrate the three-tiered approach to the lawyer’s ethical obligations, this essay focuses on the lawyer’s …

Confidentiality And Common Sense: Insights From Philosophy, Thomas Morawetz

San Diego Law Review

In this Article, I will consider two aspects of the controversy that help explain why it is static. I will consider the significance of empirical evidence that lawyers and clients find the rules morally troubling. Zacharias plausibly assumes that such evidence carries compelling weight. I will also look at the nature of morality itself and the extent to which professional rules should be expected to conform to morality.

Ethically Handling The Receipt Of Possibly Privileged Information., James M. Fischer

St. Mary's Journal on Legal Malpractice & Ethics

Inadvertently sent e-mails that contain privileged information, material negligently included in a discovery response, or employer's documents taken by a whistle-blower all share a common theme-the materials were not intended to be disclosed to the opposing party. This Article makes two contentions. First, all unintended disclosures should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyer's professional obligations, a lawyer who receives materials that may be privileged should be allowed to read the materials: (1) to determine whether the materials …

Director Confidentiality, Cyril Moscow

Law and Contemporary Problems

The Corporate Directors Guidebook contains the bare proposition that a director must keep confidential all matters involving the corporation that have not been disclosed to the public. Moscow explores the need to modify the flat recitation of a rule of director confidentiality in light of the limited authority for a blanket restriction, and the necessary exceptions in the business contexts in which the issue arises. In particular, many situations do not involve damage to the corporation, or there is express or implied consent to the sharing of information.