Professional ResponsibilityLaw 115

Wed., Oct. 17

In re Grand Jury Subpoena(1st Cir. 2001)

First, they must show they approached [counsel] for the purpose of seeking legal advice. Second, they must demonstrate that when they approached [counsel] they made it clear that they were seeking legal advice in their individual rather than in their representative capacities. Third, they must demonstrate that the [counsel] saw fit to communicate with them in their individual capacities, knowing that a possible conflict could arise. Fourth, they must prove that their conversations with [counsel] were confidential. And, fifth, they must show that the substance of their conversations with [counsel] did not concern matters within the company or the general affairs of the company.

work product privilege

R 26(b)(3)(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

• Intersection of privilege against self-incrimination and attorney-client privilege

problem of documentary evidence in the hands of a lawyer

• assume incriminating material is given to the lawyer– Will be protected under attorney-client privilege

to the extent that it would be protected under the privilege against self-incrimination in the hands of the client

– If not protected under privilege against self-incrimination in the hands of the client, then no attorney-client privilege by giving to lawyer

but when would incriminating evidence be protected by the

privilege against self-incrimination in the hands of client?

Fisher v. United States(U.S. 1976)

United States v. Hubbell(U.S. 2000)

crime-fraud exception

Restatement section 82The attorney-client privilege does not apply to a communication occurring when a client:(a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or(b) regardless of the client's purpose at the time of consultation, uses the lawyer's advice or other services to engage in or assist a crime or fraud

• Attorney Self-Defense

handling physical evidence of crime

Commwealth v. Stenhach(Pa. Super. Ct. 1986)

In order to show that the criminal statutes applied to the Stenhach brothers were unconstitutionally vague, the court introduces a scenario under which a client gives his attorney a handwritten account of his crimes. Turning the document over to the police would be required by a literal violation of the statutes but, as the court notes, “to do so would be an egregious violation of the attorney’s duties to his client.” (p. 34)

rule of thumb for determining whether a lawyer has obstructed

justice –

lawyer cannot, by examining or holding on to evidence, make

things harder for the prosecution, but the lawyer is not obligated to

make things easier for them

• Client robbed someone and threw the wallet in a trash can (has finger prints on it)

• Tells lawyer about it• The lawyer removes the wallet from the

trash can and holds on to it in his office without telling the prosecution.

• Has the lawyer obstructed justice?

• MR 3.4• A lawyer shall not:• (a) unlawfully obstruct another party' s access

to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

• (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law

If the prosecution discovers that the lawyer has the wallet, can the lawyer be forced to turn it over to them or would that mean violating the attorney-client privilege?

• If he can be forced to turn it over, can the prosecution introduce as evidence at trial the fact that the wallet originally was found in the defendant’s trash can?

• How about the fact that the prosecution got the wallet from the defendant’s lawyer?

The lawyer removes the wallet from the trash can and examines it for evidence favorable to his client. He finds nothing. He then gives it to the police anonymously with a note attached that says that it is the victim’s wallet.

• The lawyer removes the wallet from the trash can and examines it for evidence favorable to his client. He finds nothing. He then gives it to the police, telling them that he got it from the defendant’s trash can

• Has the lawyer obstructed justice?• May the prosecution introduce as evidence

the fact that the wallet came from the defendant’s trash can?

• May it introduce the fact that the lawyer gave the wallet to the police?

• The lawyer looks at the wallet in the trash can without touching it, to see if he can find any evidence favorable to his client. He doesn’t, so he leaves the wallet in the trash can without telling the prosecution.

waiver

inadvertent disclosure

Fed R Evid. 502 …(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:(1) the disclosure is inadvertent;(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).

Fed. R. Civ. P. 26 (b)(5)(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

MR 4.4(b)(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

waiver will not occur if disclosure is itself in a privileged context

waiver through putting into issue

subject matter waiver

subject matter waiver when disclosing communications in a

non-litigation setting?

selective waiver to go through disclosure to the government?

–duty of confidentiality• applies everywhere• keeps lawyer from divulging a wide

range of information relating to representation• BUT must give it up if required by court

(in discovery)

• MR 1.6• Lawyer shall not reveal information related to

representation of a client• unless• client gives informed consent• or impliedly authorized in order to carry out

representation• or an exception applies (will discuss later)

• MC DR 4-101(A)• "Confidence" refers to information protected

by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

Va. Rule 1.6 Confidentiality of Information(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

• A friend of a lawyer tells the lawyer at a dinner party that X has a shoplifting conviction. The friend does not know that the lawyer represents X in connection with a subsequent shoplifting arrest.

• Is this confidential information under the Model Rules?

• While investigating a client’s defense in a drunk driving case, the lawyer discovers that the client is considering a divorce.

• Is this confidential information under the Model Rules?

• A lawyer learns from a client, whom he is representing in a negligent driving case, that, although the client must wear glasses when driving, his prescription is very weak. At a cocktail party the lawyer tells a number of friends about the client’s prescription, as an example of how strict the rules for wearing glasses while driving really are.

• Did the lawyer reveal a client confidence under the Model Rules?

MR 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:…(4) to secure legal advice about the lawyer's compliance with these Rules;

duty of confidentiality in joint representation

A v B v Hill Wallach (N.J. 1999)- law firm jointly represented both spouses in drafting their estate plans- firm learned that husband was father of an illegitimate child- father told firm not to tell wife

Restatement § 60, cmt. l

The lawyer, after consideration of all relevant circumstances, has the discretion to inform the affected co-client of the specific communication if, in the lawyer's reasonable judgment, the immediacy and magnitude of the risk to the affected co-client outweigh the interest of the communicating client in continued secrecy.

• A lawyer is processing a patent application for a corporation. The information he gains from the client leads him to believe that the patent is very valuable. The lawyer therefore buys 100 shares of the corporation’s stock, which is traded publicly, without telling the client. The share price of the corporation goes up.

DR 4-101 Preservation of Confidences and Secrets of a Client.…(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:…(2) Use a confidence or secret of his client to the disadvantage of the client.(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.

1.8(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

• A lawyer helps a client draw up the documents for purchasing a plot of land upon which the client is going to build a gas station. The lawyer figures that once the gas station is build, the land next to it will be prime real estate for a fast food restaurant. After the client buys the property and the lawyer-client relationship is terminated, but before the gas station is built, the lawyer buys the land next to the client’s. The fast-food restaurant he subsequently builds on the property is a big success.

• Is this in violation of The Model Rules?

• 1.9(c)• A lawyer who has formerly represented a

client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

• (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known

• Duty of confidentiality concerning prospective clients

• 1.18• (a) A person who discusses with a lawyer the

possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

• (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

self-defense exception

• lawyer may reveal confidence• 1.6(b)(5) • to establish a claim or defense on behalf of

the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client

• Comment [10] …The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

Meyerhofer v. Empire Fire and Marine Ins. Co. (2d Cir. 1974)

• A client consults you about a business that you think amounts to an illegal Ponzi scheme. You inform him of this and refuse to represent him in connection with it. You later find out that he is pursuing the scheme anyway. May you use the self-defense exception to inform the victims of the scheme or to inform the authorities?