You downvoted me, which is odd in light of your "tyranny of the majority" post.
The attorney-client privilege is EXCLUSIVELY a privilege against testimony of confidential information. Without confidentiality, the attorney client privilege has no reason to exist. Confidentiality is a condition precedent to the attorney-client privilege (along with a formal demand for disclosure of the confidential information).
Agreed.
If something is not confidential between my client and me, but I assert the attorney client privilege over a demand for that thing, the argument is baseless. Because it's not confidential, the information cannot be privileged.
Agreed.
Because the information cannot be privileged, the discussion on the crime-fraud exception is totally unnecessary. The crime fraud exception exists ONLY to overcome the privilege when it is asserted over confidential attorney-client communication.
Disagree based on the facts at issue. The attorney did not waive any privilege by discussing confidential information with the state attorney's office. The information was not confidential because of the crime-fraud exception. The reason the attorney discussed the communications with the state attorney's office was because the crime fraud exception in Rule 1.6 allowed him to do so, i.e., he may disclose the information (actually, he has to in Florida). Once the court ordered the attorney to disclose the information, the exception in Rule 1.6 for court orders applies, and the attorney can only protect the information with the attorney-client privilege, which is typically found in a state's common law, not Rule 1.6.
Rule 1.6 is clearly a waiver of confidentiality at the discretion of the attorney! It states an attorney can waive confidentiality for the listed reasons. If we're applying the Model Rules as a thought experiment (as /u/clintonius explained was not followed in Florida), Hilley did that given the ongoing crime. He then backpedaled and tried to assert the privilege against testifying to confidential information, when the information was not confidential.
The only reason the information was not confidential is because the crime-fraud exception applies. The exception in Rule 1.6 that an attorney may reveal confidential communications if they facilitate a crime is a codification of the crime-fraud exception. Essentially, the rule states that the communications are not confidential anymore because of the crime-fraud exception. It is not a "waiver" of otherwise confidential communications. In other words, the communications did not lose their confidentiality because the attorney disclosed the communications, they were never confidential to begin with (because of, again, the crime-fraud exception).
Once the attorney asserted the attorney-client privilege, then the issue becomes whether the crime-fraud exception to the attorney-client privilege applies. Again, the crime-fraud exception basically holds that communications used to facilitate, or potentially used to facilitate, a crime are not confidential. However, the crime-fraud exception under the attorney-client is not found in Rule 1.6(b). It is typically found in the common law, just like the attorney-client privilege itself. That is why I originally said you were confusing the two, because you kept citing Rule 1.6, which is not at issue when the attorney asserts the attorney-client privilege.
This is bogus. You honestly believe confidential attorney client information can be required when an attorney requests information in interrogatories? Or that a judge can unilaterally waive the privilege because they say so? That's why there's a privilege!
I believe that confidential communications can be required unless the attorney client privilege applies. That is why I explicitly stated "You would have to assert the attorney-client privilege and work product doctrine to protect your client file." You are conflating the attorney's general duty of confidentiality (which does not apply when a court orders the information, or another attorney asks for the information in an interrogatory), with the attorney-client privilege (which can be asserted against a court order or interrogatory). When a court orders you to reveal confidential information, you do not refuse and cite Rule 1.6. You assert the attorney-client privilege. As you said, all communications protected by the attorney client privilege are confidential. However, the inverse is not true: not all confidential communications are protected by the attorney client privilege.
If you're an attorney, you should question your adherence to this viewpoint, as it serves your clients a severe disservice. If you've disclosed confidential information in interrogatories, contact your malpractice carrier.
I am an attorney, I just don't feel the need to bring it up in an appeal to authority when I am downvoted. I believe my legal analysis should rise and fall on its own merits.
As to your main point: again, I would not assert that the information is confidential in the face of a court order or interrogatory, I would assert that it is protected by the attorney-client privilege. Mere confidentiality alone is not enough to protect the information, as not all confidential information is protected by the attorney-client privilege.