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A Seminar on Professional Responsibility in Legal Ethics: THE PROFESSIONAL DUTY OF CONFIDENTIALITY (ABA Model Rule 1.6 and representative state rules) and Work Product Doctrine

The concept of “legal ethics” has evolved over the years from suggested cannons of courtesy to mandatory rules of conduct.  Today, lawyers are faced with a multiplicity of ethical considerations in a profession whose technologies and missions are fast changing, but one which is also grounded in core principles.

In designing an ethics course for the profession at large that not only serves as an opportunity for collegial reflection but also satisfies ethics CLE requirements, we have selected a topic which is of importance to lawyers in all legal organizations and fields of practice: confidentiality, which is a fiduciary  duty of professional importance to lawyers.

We are presenting the subject in an interactive lecture accompanied by a fleshed-in outline and a review exercise.  The seminar addresses: 

  • The concept of “legal ethics” and their evolution and present legal foundations in state rule-making authorities.
  • ABA Model Rule 1.6 on Confidentiality, as well as comparisons of it to some typical state rules – which are not always the same as the ABA Model Rules.
  • A comparison of the Professional Duty of Confidentiality to the closely-related topics of the Attorney-Client Privilege and the Work Product Doctrine.
  • A review exercise, which we hope will evoke a lively exchange of opinions and perspectives.

We hope this seminar provides you with insight and information, and is also a pleasant opportunity for you to satisfy your ethics CLE requirements.

Dates and Locations

This course will be scheduled soon. Please enter your information below to receive a notification when the class is scheduled.

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3:15 PM - 5:15 PM
Schedule for La Jolla, CA and Hilton Head, SC

Course Agenda

PART I. - "Legal Ethics"

  1. What Are "Legal Ethics"? 
    1. The Subject of "Legal Ethics"
    2. Law School Education in Legal Ethics
      1. The Current ABA Criteria
      2. The Bar Exam 
      3. Legal Ethics in the Good Ole Days 
    3. Ethics Continuing Legal Education 
        1. A Mix 
        2. New Topics
        3. CLE Teaching Methods 
        4. Our CLE Instruction 
    4. "Ethics," "Legal Ethics," and "Professional Responsibility" 
      1. The "Right Thing" 
      2. "Be Nice" Ethics 
      3. "Legal Ethics."
      4. "Professional Responsibility"
  2. The Background of Modern Codal Professional Responsibility
    1. Introduction
    2. The ABA Canons of Professional Ethics (1908) 
      1. Exhortations 
      2. The Canons' Status Evolves to Binding Rules
    3. The Code of Professional Courtesy
    4. The ABA Model Code of Professional Responsibility (1969)
    5. The ABA Model Rules of Professional Conduct (1983)
    6. The ABA "Ethics 2000" Initiative (2002). 
    7. The ABA Enron Amendments (2003)
    8. The ABA Model Rules - In Perspective 
    9. The Restatement (Third) of the Law Governing Lawyers
    10. The Role of the States
      1. State Authority Prevails 
      2. Most State Rules Reflect the ABA Rules 
      3. Status Check for Your State 
    11. The Pace of Life and Legal Ethics 
    12. Perennial Questions 
    13. A Note for Corporate Counsel
      1. Reporting Up and Out. 
      2. Sarbanes-Oxley.
      3. Federal Government Contracting

PART II - Confidentiality, The Attorney-Client Privilege, and The Work Product Doctrine

  1. The Confluence of Three Topics  
    1. Introduction
    2. Our Approach
  2. The Duty (and Professional Duty) of Confidentiality
    1. Introduction 
    2. The Debate Over the Legal Profession's Professional Duty of Confidentiality 
    3. The ABA Model Rules on Confidentiality - A Summary. 
      1. A Summary of ABA Model Rule 1.6
      2. Discussion
        1. The Basic Rule of Confidentiality. 
        2. The Background of the Current ABA Model Rule 1.6. 
        3. "Secrets" and "Confidences." 
        4. Using (vice Disclosing) Confidential Information. 
        5. Prospective Clients
        6. The Continuation of the Duty After the Attorney-Client Relationship. 
        7. The Duty to Protect Confidential Information.
        8. Generally Known Information. 
        9. An Introductory Comparison of the Duty to the Attorney-Client Privilege and Work Product Doctrine. 
    4. The ABA Model Rule 1.6 (2009 edition - the E2K/Enron Version)
  3. Comparison of the Current ABA Model Rule and to the States
    1. Introduction: They aren't called "model" rules for nothing
    2. The Commonwealth of Kentucky
    3. The State of South Carolina
  4. The Attorney Client Privilege
    1. Introduction to the Attorney-Client Privilege
    2. The Wigmore Elements of the Attorney-Client Privilege
    3. The Wikapedia Elements of the Attorney-Client Privilege
    4. The Restatement Elements of the Attorney-Client Privilege
    5. The Purpose of the Attorney-Client Privilege
    6. Discussion of the Attorney-Client Privilege
      1. A "Communication" from a Client/Potential Client
      2. Two-Way Communication?
      3. Information From Non-Clients
      4. "Privileged Persons"
      5. In Confidence
      6. Purpose: Legal Advice 
      7. An Organization as the Client
      8. Duration of the Attorney-Client Privilege
    7. Exceptions to, and the Waiver of, the Attorney-Client Privilege
      1. Exception and Waiver 
      2. The Crime/Fraud Exception
      3. Intentional Revelation/Waiver
      4. Selective Waiver 
      5. Inadvertent Disclosure
      6. A Failure to Object 
      7. Mistaken Release
      8. Underlying Information
      9. The Attorney-Client Privelge in Federal Litigation
    8. "New Federal Rule of Evidence 502
      1. Change to FRE 502
      2. Inadvertent Disclosure
      3. Subject Matter Waiver
      4. Applicability of Federal Court Orders
      5. Confidentiality
      6. Affect on Electronic Discovery
      7. The New FRE 502
  5. The Work Product Doctrine 
    1. Introduction
    2. Terminology
    3. Legal Status of the Work Product Doctrine
    4. Background of the Work Product Doctrine
    5. "Opinion" and "Ordinary" Work Products
      1. Key Distinction
      2. Obtaining an Ordinary Work Product
      3. Obtaining an Opinion Work Product 
    6. "Prepared in Anticipation of Litigation
    7. The Work Product Doctrine in the Federal Rules of Civil Procedure
    8. Comparison of the Work Product Doctrine with the Attorney-Client Privilege.
  6. Comparisons of the Duty of Confidentiality, Attorney-Client Privilege, and the Work Product Doctrine 
    1. Source of Authority
    2. Coverage or Scope
    3. Operation
    4. Responsibility
    5. Duration
    6. Effect of Improper Release/Breach
Kenneth J Allen
Ken worked in the federal government for 37 years (31 as a lawyer).  He served in the Army either active or reserve from 1970 until retirement in 2002, and in the civil service from 1984 to 2007.  His last twenty years in government were spent in government contracting and grants, and his last ten years included duties as a Special Assistance United Attorney with an emphasis on contract fraud.  In 2007 Ken retired from government and became the General Counsel of a defense contractor.  In 2009 he retired (again) and now teaches and writes on government contracting subjects.

Since 1995 Ken has been a frequent educator for government and private training organizations, including the Army Management Staff College, Army War College, and Naval Postgraduate School (for whom he teaches best practices in defense contracting at the NPS campus in Monterey CA and at several overseas locations).  He has authored over 50 training programs on topics that include government contracting, subcontracting, contract interpretation, federal appropriations and fiscal law, the fiscal law of government contracting, the Antideficiency Act, federal grants, trial advocacy, and legal ethics.   
Ken is the author of Thomson Reuters’ Contract Interpretation Handbook, A Guide to Avoiding and Resolving Government Contract Disputes, How to Read a Government Contract, and Federal Grant Practice.  He has recently authored several articles on government contracting in the National Contract Management Associations’ Contract Management magazine (June 2016, December 2015, November 2015) and in Thomson Reuters’ Briefing Papers (May 2016 and March 2015). He has addressed national conventions of the National Contract Management Association (Worldwide Conference 2016 & 2017), the American Society of Military Comptrollers, and Thomson Reuters’ Government Contracts Year in Review (2014-18), and the American Bar Association National Convention (2018).
Certificates of Completion are provided to all seminar participants who attend Federal Publications Seminars courses following the event, upon request.
All Federal Publications Seminars courses meet the course requirements of the National Contract Management Association’s certification programs. We are a proud Education Partner of the NCMA.
Federal Publications Seminars is part of West Professional Development, which is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have the final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website:
This Program is eligible for: 2.0 (CPE) hours of credit
Program Level: Basic
Program Prerequisite: None
Advance Preparation: None
Method: Group-Live
Defense Acquisition Workforce members must acquire 80 Continuous Learning Points (CLP) every two years from the date of entry into the acquisition workforce for as long as the member remains in an acquisition position per DoD Instruction 5000.66. We will provide you with documentation of points awarded for completing the event.
This Program is eligible for: 2.0 (CLP) hours of credit
States have widely varying regulations regarding MCLE credit. LegalEdcenter is an approved provider in AL, AK, AR, CA, GA, IL, ME, MO, MS, NC, ND, NE, NH, NJ, NM, NV, NY, OH, OK, PA, RI, SC, TN, TX, UT, VA, VI, VT, WA, WI, and WV. Credit may be applied for in other jurisdictions on request and in accordance with state MCLE rules.
** Please note that because some states are changing their policy on CLE reporting, you will need to fill out the request for credit from Federal Publications Seminars within 10 business days, or we may not be able to issue credits for the program.
This Program is eligible for: 2.0 (60 minutes), 2.0 (50 minutes)
Basic or fundamental subject matter is covered. Courses are geared to general knowledge or can be taken as a refresher.
Specific topics or issues within a topic area are covered. Students should be familiar with terms of art and general concepts concerning the course topic.
Workshops and class discussions cover specific subject matter in-depth, and participation is strongly encouraged. Attendees should have at least 2-3 years' experience in the area of study.
Courses build upon students' knowledge and experience, and cover complex issues within the subject matter. Should have 4-5 years' mastery of subject for in-depth analysis.
Masters-level programs designed for professionals with 5+ years' experience. Courses cover in-depth and technical analysis on specific subjects and updates on current issues.
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Legal Ethics for Attorneys
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