Professional ResponsibilityLaw 115

Wed., Oct. 24

handling physical evidence of crime

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

waiver

waiver through putting into issue

subject matter waiver

–duty of confidentiality

• 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).

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

limitations on the use of confidences

• 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.

“conflicts tainting”

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)

Model Code

4-101(C) A lawyer may reveal:…(3) The intention of his client to commit a crime and the information necessary to prevent the crime.

1.13(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

• 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?

exceptions for client crime/fraud

distinguish:1) prohibition on counseling or assisting crime/fraud2) crime/fraud exception to the attorney-client privilege

Distinguish cases in which attorney is obligated to speak by the prohibition on counseling or assisting crime/fraud

silence = counseling or assisting crime/fraud

noisy withdrawal

distinguish:preemptive self-defense

silence would not counseling or assisting crime/fraud

preemptive revelation would not be reasonably necessary for lawyer

self-defense

Model Code

4-101(C) A lawyer may reveal:…(3) The intention of his client to commit a crime and the information necessary to prevent the crime.

- client reveals that he intends to jaywalk

• 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 inform the victims of the scheme or to inform the authorities?

A client has given you false information on a prospectus you did due diligence forYou discover it later – may you reveal it to investors?

a client reveals that he has dumped toxins in a rivermay you tell the people who might be harmed?

Va. Rules of Professional Conduct 1.6(c)A lawyer shall promptly reveal: (1) the intention of a client, as stated by the client, to commit a crime and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned, and, if the crime involves perjury by the client, that the attorney shall seek to withdraw as counsel

1.6(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:

(3) such information which clearly establishes that the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation;

- client reveals that he intends to jaywalk

• 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 inform the victims of the scheme or to inform the authorities?

A client has given you false information on a prospectus you did due diligence forYou discover it later – may you reveal it to investors?

a client reveals that he has dumped toxins in a rivermay you tell the people who might be harmed?

Old (1983) Model Rule 1.6 Confidentiality of Information (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;

- client reveals that he intends to jaywalk

• 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 inform the victims of the scheme or to inform the authorities?

A client has given you false information on a prospectus you did due diligence forYou discover it later – may you reveal it to investors?

a client reveals that he has dumped toxins in a rivermay you tell the people who might be harmed?

Current MR 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

- client reveals that he intends to jaywalk

• 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 inform the victims of the scheme or to inform the authorities?

A client has given you false information on a prospectus you did due diligence forYou discover it later – may you reveal it to investors?

1.13(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

Old MR 1.13(c) If despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16.

Current 1.13(c) Except as provided in paragraph (d), if(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization,then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

preventing physical harm/death

Model Code

4-101(C) A lawyer may reveal:…(3) The intention of his client to commit a crime and the information necessary to prevent the crime.

Va. Rules of Professional Conduct 1.6(c)A lawyer shall promptly reveal: (1) the intention of a client, as stated by the client, to commit a crime and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned, and, if the crime involves perjury by the client, that the attorney shall seek to withdraw as counsel

Old (1983) Model Rule 1.6 Confidentiality of Information (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;

• Your client, whom you are representing in a divorce proceeding, tells you that her husband is furious at his lawyer and plans to beat him up. She requests that you keep this quiet.

• May you inform opposing counsel?

• Spaulding v. Zimmerman• the defendant’s lawyers (and perhaps the

defendant), but not the plaintiff or his counsel, are aware that the plaintiff has a life threatening aneurism resulting from accident caused by defendant’s negligence.

• Assuming that the defendants do not want to divulge the information, may their lawyers do so anyway?

a client reveals that he has dumped toxins in a rivermay you tell the people who might be harmed?

(b) A lawyer may reveal information relating to the representation of a

client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

Balla v. Gambro, Inc.(Ill. 1991)

MR 1.13 (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.

Ill. R. Prof. Conduct 1.6(b) A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.

MR 1.13(c)(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

forced exceptions

Tarasoff v. Regents of the University of California(Cal. 1976)

Hawkins v. King County(Wash. App. 1979)