Professions

A. Use or Disclosure of Confidential Information for Personal Gain or to Benefit Another Client

1. See R. 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) This rule applies when the information is used to benefit with the lawyer or a third person. b) The rule does NOT prohibit use of information that does not disadvantage the client. Even where use might disadvantage the client, the information may still be used if the client gives informed consent. 2. Restatement: Prohibits the use of confidences "if there is a reasonable prospect that the use will adversely affect a material interest of a client or if the client has instructed the lawyer not to use or disclose such information."

I. Introduction

A. What are the reasons for these rules? 1. Keeps lawyers out of trouble 2. Helps lawyers to evaluate the behavior of other lawyers so they can take protective measures B. Distinction between morals and ethics 1. Members of a "profession" typically must adhere to a code of ethics. Traditional professions include doctors, lawyers and ministers. 2. Morals concern one's personal philosophy of right and wrong. 3. It's not unusual that a rule of ethics might be in conflict with a rule of morals. C. The ABA model rules are not the law. They must first be adopted by a state's supreme court, although states usually don't alter the model rules. Be sure to know any differences, if any, between the state and model rules. In LA we have adopted the Model Rules but not the comments.

A. Institutions that Regulate Lawyers 1. Lawyer disciplinary agencies

a) In La., this is called the Office of the Disciplinary Counsel. They investigate and prosecute misconduct that violates the state ethics code. b) Usually run by the highest state court, the state bar association or by both. c) The body of published opinions in disciplinary cases is helpful to interpreting and applying the ethics codes.

institutions that regulate lawyers state and local bar associations

a) Usually organized as a private nonprofit organization b) May have some governmental functions as delegated from the state's highest court - a state bar that accepts these functions is called an integrated or unified bar rather than a voluntary bar. In unified state bars, membership is mandatory. c) In addition to state bar organizations, most states have a variety of other voluntary bar associations that lawyers are not required to join.

Revealing confidences to obtain advice about legal ethics

a) A lawyer may invoke this exception to consult another lawyer for advice. The other lawyer may be in another firm, a law professor, or a bar official. b) Compliance with the rules is more important than protecting client confidences. 2. Using a client's confidential information to protect the lawyer's interests a) R. 1.6 provides yet another exception:

A. Application to the Bar and Admission to Practice 1. In general

a) In most states, the rules for admission to the bar are established by the highest court of each state. b) The basic requirements for admission to the bar include: (1) Graduation from an accredited undergraduate college; (2) Graduation from a law school that meets the state's educations standards (usually ABA-accredited); (3) Submission of an application for admission to the bar; (4) Obtaining a passing score on the bar exam administered by the state; and (5) A finding that the applicant is of good moral character and is fit for the practice of law.

institutions that regulate lawyers administrative agencies

a) Many administrative agencies impose additional ethical or procedural rules on lawyers who appear before them. b) Lawyers who engage in misconduct in practice before these agencies may be subject to civil or criminal penalties.

1. Express waiver by client

a) The attorney-client privilege can be expressly waived by the client. b) May also be waived by the client's lawyer if the waiver has been authorized by the client. c) Waiver requires a voluntary act by the client or by an authorized agent of the client. d) You should likely tell the client everything is confidential. So they understand.

institutions that regulate lawyers malpractice insurers

a) The conditions for providing insurance set a body of private law that governs lawyers who contract with these companies. b) Loss prevention structures: Insurers may required to prevent the firm from being held liable. c) The guidance to and supervision of law firms by insurers is an important, though nongovernmental, form of regulation.

1. Origins of the work product rule

a) This was first recognized in Hickman v. Taylor (1947). It is a relatively new CML rule that protects from compelled disclosure a lawyer's private notes and mental impressions.

A. The Privilege for Corporations In general

a) While corporate clients may invoke the privilege just like individual clients, the scope of the privilege in this context has been controversial. b) For a long time, only communications between the lawyer and the "control group" (upper management) were privileged. This was changed in Upjohn.

A. The Elements of the Attorney-Client Privilege

1. The following elements must be present for the privilege to be evoked: a) "Communication" b) between Privileged Persons c) Communication in confidence (the client must reasonably believe that the communication is confidential) d) Communication for the purpose of seeking legal assistance

institutions that regulate lawyers legislatures

a) Through other kinds of legislation (criminal, banking, securities, etc.), Congress and state legislatures govern lawyers. Most states have statutes that make it a misdemeanor to engage in the unauthorized practice of laws.

a) 3-3 The Fatal Bus Crash

(1) A man was injured in a bus crash that had bought a life insurance policy previously. The insurance company refused to pay the claim because the man died from "being taken off life support" rather than directly from the bus crash. The P's lawyer suspects that the insurance company is guilty of fraud. Are communications between the insurance co. protecting the fraud privileged? (2) While all the elements of the attorney client privilege may be met in this case, the privilege will be defeated where the client is using the attorney's assistance to cover up fraud.

Rule 8.1 Bar Admission & Disciplinary Matters problem 1-1: Pot

(1) Applicant to the bar had smoked pot on and off for the last 3 years. Should the applicant disclose this on the bar application, if the question asks: Does the applicant currently, or has been in the last 3 years, engage(d) in the illegal use of drugs? (2) While the question could be manipulated so one could say no, it would most likely be dishonest not to disclose the truth. (3) See Rule 8.1 (in connection with 1.6) This rule does not reach people unless admitted to the bar but one admitted it can reach out to the time you lied when not yet admitted. (4) An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) Knowingly make a false statement of a material fact; or (b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6 (5) Other options for this applicant: (a) Plead the 5th, but this would probably raise more suspicions than necessary. The bar admissions committee is most likely to investigate it on their own. (b) Sue the committee (c) Get advice from counsel as to how to respond to this question (i) Suppose the applicant discloses everything to an attorney, and the attorney responds that the use is relevant to the bar application, and if it isn't disclosed, then there is a huge risk if it is discovered the applicant was lying. The applicant rejects the advice, and lies on the application. Does the lawyer have an obligation to inform the committee that the applicant was lying? (ii) The lawyer need not disclose the information if it would violate Rule 1

a) Rule 19: Rules for Lawyer Disciplinary Enforcement (La.) ==> This is a very long rule that covers the ins and outs of the La. disciplinary system.

(1) Appointments: To disciplinary counsel (Plattsmire). Also to hearing committees (2 bar members and one public member). (2) Periodic assessment of lawyers: Lawyers must pay a fee to help fund this office ($200/yr). (3) Grounds for discipline Section 9 of the LA Rule 19: (a) Violation or attempt to violate one of the rules (b) Violation of the rules of another jurisdiction (c) Willfully violating a valid order of the court or the board imposing discipline. (can't ignore the ODC) (4) It is important to note that a lawyer can be punished for conduct that has no direct bearing on the practice of law, if the misconduct raises character issues that compromise the integrity of the profession. (5) The people who file these complaints are given immunity. So can't sue sister because when she files the complaint she now has immunity. (if violate usually public reprimand) (a) So can't sue for defamation to the person who brings the complaints (b) So if you sue the defamation than you have violated the rule and are now subject to discipline!!!! (c) Sec 12

a) Mental health

(1) The concern in asking to disclose this information is that perhaps some people who suffer from serious mental illness would disserve their clients because of it or pose a danger to others. (2) Recall the story of Rose Gower and the repeated harassment by the committee regarding her depression and medical treatment that had been sought 7 years before she applied to the bar. It delayed her bar application for a year! (a) Mental health issues (b) Stress and strain b/c close people died and raped (c) Sought counseling but no medicine currently (d) She still goes to therapy à ongoing problems? Better to suspend therapy? (e) Current job and been promoted. Did very well in law school. (f) Her application was on ice for a year as they continued to ask more and more mental questions. (3) While it's probably reasonable for the committee to get more information regarding the mental illness to ensure that she is fit to practice law, this tends to come down on people that honestly disclose their mental status. However, if the applicant were to lie about this, it would be really easy to prove and he would likely be denied admission. The bar was aggressive an unnecessarily harsh with Rose.

A. The Death of the Client 1. Introduction a) 3-4: The Dead Murderer

(1) There was a man dying of cancer on death row. He confesses to you that he committed another murder that is being prosecuted now. Someone else is the D in that case, even though this man was the real killer. He asks whether he would be prosecuted for confessing to the crime. The attorney knows that there is another guy that may be prosecuted for a crime that he didn't commit. (2) Since the client is asking for legal advice, this would definitely be subject the confidentiality rule in 1.6. This might fall into an exception under 1.6: if someone is being prosecuted for a capital offense, there is a chance they would be sentenced to death upon conviction, and therefore disclosure may be needed to prevent substantial harm or death. Even if they just got sentenced to life in prison, that might constitute substantial harm. (3) The man that confessed to the murder is now dead. Does the duty of confidentiality go away once the client dies? A comment to 1.6 says that the duty continues, even after the attorney-client relationship is terminated. (4) Could the information be "used to the clients disadvantage?" maybe embarrassment to his family or to his estate. (5) What is the harm if the lawyer makes the disclosure anyway? The decedent's survivors may be embarrassed and it would tarnish the reputation of the decedent (although he was already on death row). The Attorney-Client privilege also continues after death...EXCEPT California they do not allow attorney/client privilege to continue after death of the individual in question.

Dumaine case: (p.11): court focuses more on the alcohol problem. "The evil has become ascendant." The LASC court created a committee on alcohol and substance abuse. Dumaine remands for some reconsideration of issues. Dumaine fires a gun across Old Hammond Hwy, but if he can show he was drunk (an alcoholic) he may get a lesser penalty if he can prove he's taken steps to remedy the problem.

(1) These are considered mitigating circumstances that would help his cause. (2) OUTCOME: LAP (lawyers assistance program) if you or your partner are on the sauce you can call and get help. Separate from the ODC [privacy concerns you can tell the LAP people and they are not going to rat you out to the ODC]. The court does say alcohol and drug abuse can be mitigating circumstances. It will lessen the blow of discipline. If you do something (like fire a gun) but you were using alcohol which caused the misconduct AND show you have taken steps to overcome alcohol problem and show extent that you are successful [potential to repeat is low] and if it can be shown you have come to grips with problem hammer won't fall so hard. (3) Model Rule 8.4(b) professional misconduct to commit criminal act which reflects adversely... fitness as a lawyer (4) Flasher case à Sex addiction but never does anything to overcome so the court does not mitigate it. Disbarred. (5) Groper à Drunk and gropes and there are criminal sanctions and then goes 72 days for rehab and then moves to new city and new practice. Admits he did and is sorry and says he is in AA plus rehab and the court only have him one year probation.

a) What is fraud? A primer

(1) To comply with all these rules, it is necessary that a lawyer be able to determine what is fraudulent conduct and what isn't. (2) In general, the term refers to deliberate deception, but the term may be defined differently in criminal, tort, contract and legal ethics rules. (3) Rule 1.0(d) defines fraud for purposes of the model rules: Conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This definition of fraud may not clarify the meaning of the term, since there are so many different standards for conduct to be considered "fraudulent." Note that different standards may or may not require that the conduct be intentionally deceptive. (4) Fraud does not include merely negligent misrepresentation or negligent failure to disclosure material information. For purposes of these rules it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform. (5) In certain contexts, omissions and half-truths as well as false representations can be fraud. (6) How can a lawyer know whether he is assisting in client fraud? It depends on the context . . . (a) Before a tribunal: If the lawyer has offered false testimony, failure to disclose that fact to the court would constitute assisting fraud. The language in 3.3, "assisting a criminal or fraudulent act by the client" is not limited to the criminal law concepts of aiding and abetting or subordination. (b) In dealing with a third party: 1.2 bars only assisting a client in conduct that the lawyer knows is fraudulent. However, note that actual knowledge is not necessarily the standard - disciplinary authorities may infer from the circumstances that a lawyer did know that the legal assistance would be used for fraudulent purposes. (7) A red flag should go up any time a

a) Fraud by a client, not assisted by a lawyer

(1) What if the client tells her lawyer in confidence about a crime/fraud that she has committed or is contemplating, and the lawyer has nothing to do with it? (2) Rule 1.6 does NOT allow a lawyer who has not assisted in the bad act to make a disclosure to protect another person from injury. In this instance, the lawyer may only make a disclosure to prevent reasonably certain death or substantial bodily harm (since that exception does not require the lawyer to be involved in the bad act). b) Fraud by a client, assisted by a lawyer (1) In this instance, the lawyer may be criminally charged with abetting the client's fraud, and will also violate rule 1.2(d): A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. (2) What if the lawyer assists the client without knowledge that she's helping to commit the fraud? The lawyer may make a disclosure to prevent the fraud, or to mitigate/rectify the harm. However, the lawyer will not violate 1.2(d), as the lawyer did not knowingly commit conduct that she thought was criminal or fraudulent.

Hypo's from class:

(1) What if your client comes to you in a confidential setting and says that he committed murder and would like for you to represent him? The crime-fraud exception would not apply here, since this was a past crime. (2) The privilege will be broken if the client asks you to participate in the illegal act - the crime has not yet been committed yet and you are precluded from helping your client commit a crime. (3) What happens where the client discloses his criminal plan, asks for your help, but you decline and advise him against it too? It is not settled whether the communication would be privileged here, but the Restatement says it would be. (4) The crime-fraud exception will apply where you help your client commit crime/fraud, but you're not aware that it's fraudulent. Look to the client's intentions. (5) What if the lawyer, in carrying out his representation, commits a crime/fraud? The exception would not apply - we don't care if the lawyer has an evil motive. S isn't sure that this should be protected by the privilege. (6) What if the client mentions committing a crime and you don't do anything about it? Can opposing counsel seek compelled disclosure of the statement from you? Future crimes and fraud are the essence of the exception. The privilege would probably not apply here at all, since the client wasn't even seeking legal advice in connection with the crime. (7) What if client tells you that he's pissed at the judge and "intends to beat him up?" Would that be privileged? We are not trying to raise an evidentiary shield here, but can the lawyer do something, can he warn the judge under 1.6.? and would any exception allow this disclosure (death or substantial bodily harm). (a) Under 1.6b1, the lawyer could warn the judge. (b) The prosecutors are then warned that a threat has been made to him and his family. They

The Duty to Protect Client Confidences A. Introduction: Attorney-Client Privilege v. Duty of Confidentiality

1. Judges will use the word "privilege" to describe "confidentiality" and vice versa. THESE THINGS ARE DIFFERENT!!! 2. Confidentiality comes from ethics. The attorney-client privilege comes from evidence law - it is not a duty, but a shield to protect confidential information from compelled disclosures (where there is some legal compulsion or power of the court behind the command). Confidentiality is not a shield, but a duty to keep quiet. Privilege is a shield, to protect from questions. Confidentiality is an element of both, though. 3. There are certain elements required to even evoke the attorney-client privilege; however, the scope of the duty of confidentiality is unclear. There are exceptions to both, and they are not the same. B. The Basic Principle of Confidentiality 1. Protection of "information relating to the representation of a "client" a) Rule 1.6

Rule 5.2 Responsibilities Of A Subordinate Lawyer

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. (1) Lawyers cannot avoid responsibility for "following orders." However, where the supervisor directed the action, the subordinate lawyer may be able to prove that she did not actually know that he action was improper. (2) (b) creates a safe harbor for junior lawyers who defer to the judgment of their superiors on questions that have more than one reasonable answer. (3) Under (b), the supervisor may be disciplined where he turns out to be wrong. If the supervisor was so wrong that his belief that the action was proper was unreasonable, the subordinate may also be disciplined. (4) (b) might have the unintended effect of counseling associates to follow orders and not ask too many questions. b) Rule 5.3 explains the responsibilities of lawyers who supervise nonlawyers employees for ensuring that the employees comply with the rules of professional conduct, and explains when a lawyer may be subject to discipline based on the conduct of a nonlawyer employee.

Rule 1.6 Confidentiality Of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (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; (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; (4) to secure legal advice about the lawyer's compliance with these Rules; (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; or (6) to comply with other law or a court order. (1) This rule requires lawyers to protect as confidential all information relating to the representation of a client. The information need not be received from the client in order for it to fall under the confidentiality duty. (2) Part (a) describes the basic duty of confidentiality. There are exceptions already built into the basic rule: (a) Informed consent by the client (b) Impliedly author

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. a) Exceptions to the reporting duty: Differences in the LA rules. (1) Insubstantial misconduct: Only those raising a "substantial question" of the lawyer's honesty, trustworthiness or fitness need reporting. LA is more broad not requiring a "substantial" question. (2) Info protected by 1.6: A report need not be made if it would reveal information required to be kept in confidence under Rule 1.6. Cmt. 2 says that a lawyer should encourage a client to waive confidentiality and permit reporting if that would not substantially prejudice the client. (3) Treatment program: A lawyer assisting a lawyer who is in an "approved lawyers assistance program" LAP is not required to report information learned in the course of this service, under cmt. 5. [LA adds the ethics advisory board beside LAP who can't tell]. b) Note that this reporting duty is mandatory in most states. c) This duty is triggered by a lawyer's "knowledge" of another lawyer's misconduct and the standard for assessing knowledge is objective (more than a mere suspicion that misconduct has occurred). The question becomes whether a reasonable lawyer in the circumstances would have a firm op

Rule 5.1 Responsibilities Of Partners, Managers, and Supervisory Lawyers

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (1) If the associate reported the solo practitioner (her supervisor), would she also have to report her own incompetence [1.1]? (2) The LASC has said that there is a duty to supervise staff (paralegals, secretaries), and to make sure that they don't engage in the unauthorized practice of law. (3) Notice that in R. 5.1, any lawyer can be held responsible for the violation of the rules by some other lawyers. This sounds a lot like agency liability. (4) In small firms of experienced lawyers, informal supervision and periodic review may suffice, while more elaborate measures may be needed in large firms. (5) Keep in mind that "law firm" is a broad concept, that includes all kinds of legal organizations. (6) A supervising lawyer will not be responsible for a subordinate lawyer's violation if the supervisor did not direct

In re Kelle Hinson-Lyles (La.) [could apply again but how show re-habilitation any more]

(a) Facts: Applicant had been a high school teacher, and during this career, she had engaged in sexual relations with a minor student (14 years old). The student's father found out about the relationship, called the police, and the police found the boy hiding in her closet. (b) Criminal sanctions: She was charged with carnal knowledge of a juvenile (not statutory rape). A felony. (c) In this instance, three years had passed since the incident, and she admitted everything freely. The committee let her take the bar exam, she passed, and then the court denied her admission to the bar. (i) Why did they let her take the exam before they knew whether they would let her in? Was that really a favor? (ii) If she had flunked the bar exam, then the committee wouldn't have had to look at the character and fitness stuff. (d) The applicant has the burden of showing good character. The court gives us a hint as to what good character might be: "The primary purpose of character and fitness screening is to assure the protection of the public and to safeguard the administration of justice. The term good morla character includes, but is not limited to, the qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility and of the laws of the state of La. and the U.S., and a respect for the rights of other persons." Decide based on totality of circumstances just because committed felony does not in and of itself keep you from admittance to the bar. (e) The justices were split as to what her sanction should be. She did not get admitted to the bar at that time, but the court did not say when or if she might be able to be admitted. What more could she have proven. The court majority had a problem with her abusing a position of trust by knowingly and intentionally breaching the trust to gratify her own needs. (i

a) Louisiana law In re Rojas (La.) [permanent non admittance to the bar]

(a) Facts: Bar applicant talked during the bar exam, and it was determined that she either cheated or attempted to cheat. (b) Held: Permanent denial of admission into bar. When you sit for the bar exam, you don't talk. (c) Note the commissioner's observations: The communication that she engaged in had to be cheating because there was no other reasonable explanation for the talking. The court does not question the conclusive nature of the commissioner's statement. The commissioner's report did not disclose what the applicant was talking about: it could have been to cheat, but she may have also just needed a pen. (d) This shows how serious the bar authorities treat cheating.

a) Indiscretions and misconduct in law school In re Mustafa

(a) Facts: Took money from moot court account for personal reasons. Before he got in severe trouble, he confessed what he had done, and said he intended to pay the money back. He did repay the loan. (i) The school took some disciplinary action, but only put something on his permanent record. (ii) The hearing committee recommended that he be admitted to the bar. (iii) The court denied him admission. (DC bar didn't think he upheld his burden to prove good character and fitness.) (b) He eventually became a lawyer in another state, and it turned out that he was running around with clients' money. Also failed to show up for client meetings and failed to answer/return phone calls.

(1) 2-7: Reese's Leases (based on OPM Leasing)

(a) Facts: Your client was forging documents that said that his business was making more money than it actually was, in order to get bigger loans from the bank. You put together the original documents, but did not play any role in the forgery. Your client told you what was going on when you asked, but said the fraud operation was over. What do you do when you hear about the fraud? Phony lease and opinion letter and they both go to bank and opinion letter says they own this car and that is true. Are you involved in fraud? Yes you are involved in the fraud. (b) 102(d): she hasn't violated it by "innocently" being involved in the operation. Once you know, you should not continue to write leases for them. 1.2(d) (c) Historical "noisy withdrawals" - If the lawyer dissafirms this, then he disassociates himself from the fraud. Bank would say something is wrong but huge red flag to the bank "noisy withdrawal" historical. Really a 1.6 [I am no longer lawyer and disaffirming] this was comment to the rules (rule 4.1) but were never adopted in LA so it was not clear in LA but 1.6 B2-3 open broad avenues to disclosure. § Look at 1.6(b)(2) [prevent fraud] and 1.6(b)(3) [prevent injury]: you may do these. These are new to the ethics rules. They are present in LA. § Permissive but good to do because you can be insulated from the harm. § Fake leases to create higher profits § Forging signatures § Sarbanes-Oxley § Does it reach bank loans? § Maybe not. But if it does what should he do? § Report them to SEC or not? § Who is hurt here from there scam? The bank. So you would disclose to the bank? § LA Rule 1.6 § We have the newer exceptions! § Comment after rule 4.1 (page 201) § Noisy withdrawal § Can disaffirm an opinion or document § So you could say that you disaffirm all the opinion letters you have for the bank. Now they will dig and

(1) 1-2 The Doctored Resume

(a) Immigrant girl lied on her resume, even though she knew it was wrong. Another student had given her the idea. (i) Lied on her resume (ii) Advice from another student (iii) She is foreign and claims to believe this is custom (iv) Desperate (v) The law school is the one investigating (vi) Should the law school have the ability to discipline you? (a) Yes and most of them do (b) Does this violate R. 8.1? Even though this was not related to admission to the bar, it may still compromise the integrity of the profession and thereby cause her to be denied. Lying is a matter of how serious it is - social lies are customary, but lying on a resume is more egregious. (c) The integrity issue is important for bar admission, and for job searching - no one's going to hire a liar. Once you lie how do you prove good character.

Rule 8.1 Bar Admission and Disciplinary Matters An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) Knowingly make a false statement of material fact; or (b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6. (1.6 is confidentiality rule). a) The rule seems to impose a duty to respond to inquiries from the bar regarding an investigation. The only exception is communications that are protected by the attorney/client privilege. The client may sue his attorney in tort if the attorney breaches his duty to him. b) It may be better to respond truthfully to questions than to try to cover them up. There is an obligation to answer the questions truthfully and let the committee make their determinations. c) Notice it reaches the person who was not yet admitted in the bar d) They can go after you for failure to satisfy the requirements in the past!

Rule 8.4 Misconduct It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (plagiarism, changing teacher evaluations) (d) Engage in conduct that is prejudicial to the administration of justice; (e) State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. What they cover: (a) Covers all of the Rules - a blanket prohibition. (c) Covers a very broad range of misdeeds (d) Is a very vague standard (f) Is referring to the Rules of Judicial Conduct (we won't cover in this class). A. Differences with the La. Rule 1. Everything is mostly the same, except it makes it professional misconduct for a lawyer to: 2. Compare (b) and (g) from the LA rule (b) Commit a criminal act, especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. (g) Threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter. 3. (b) is different in that it is a broader rule that will punish lawyers for "smaller" crimes. 4. The ABA doesn't list (g), because (b) already prohibits criminal acts. The LASC felt that it was important to highlight criminal extortion. Note that it mentions both criminal and disciplinary charges.

A. Reporting Misconduct by Other Lawyers (Whistle Blowing or the Snitch Rule)

1. A cornerstone of the disciplinary system is the duty of lawyers to report serious misconduct by other lawyers. This section looks at the legal protection available to subordinate lawyers who refuse to commit misconduct or who complain of the misconduct of others. If you take the reporting duty seriously, its likely that you will face some retaliation. 2. In most states, lawyers are obliged to report other lawyers' misconduct to the disciplinary authorities. See Rule 8.3.

waiver

1. Big concern 2. This is a fairly big deal 3. One way it can be waived à client tells someone what you talked about and the advice you gave 4. What if you accidentally send some privileged info to the other lawyer a) Client did not waive b) Attorney actions c) Some say it is the client's privilege and therefore not waived, but other cases the attorney's conduct can waive it. 5. When there is an ongoing fraud than attorney's privilege is going to been blown 6. What if after your tell him the consequences and don't do it and so he says ima get another lawyer to help me. Is it still privileged? Probably not, maybe if it convinces him not too. 7. Client comes in for advice on legit scheme and lawyer gives wicked advice and client does not its illegal. Client's intent is what controls. Privilege still applies if the client meant well and lawyer doesn't and never tells client 8. What about if client comes in with dirty scheme that attorney thinks is ok. This time the privilege falls. 9. Attorney representing father and juvenile. Dad is upset about judge's decision and leaves 6 messages on attorney's answering machine. They are violent and irrational. Says he knows where judge lives and how many children he has and prejudices should be exterminated. Attorney erased them. Can he tell the judge? If you think there is a reasonable prospect that this will be carried out than you can warn the judge. Prosecutor comes after lawyer and says tell us what he said because it's a crime. Lawyer claims attorney client privilege. This was not for getting legal services according to prosecutors. The court found that it was! The prosecutor didn't carry the burden. Worth preserving here for policy reasons.

A Concluding Problem: 3-9: Rat Poison

1. Client operates extermination business, and accidentally placed industrial strength rat poison in a home. A little kid ate it and died. Client has been charged with involuntary manslaughter. The client admits that he also put the poison in many other homes. You instruct client to go clean up these houses so nothing else happens, but months pass and the client keeps promising he'll get to it. 2. Exception to nondisclosure under R. 1.6b1: To prevent reasonably certain death or substantial bodily harm. Is the harm in this instance reasonably certain? Are you assisting the client if you don't disclose? 3. Would R. 4.1(b) require disclosure here, to avoid a crime (state statute makes it a misdemeanor to recklessly engage in conduct that creates a substantial risk of death)? 4. Could you withdraw to solve the problem? The duty of confidentiality continues after the attorney client relationship, however, an exception under the mitigation 1.6(3) could apply. If the attorney's services have not been involved in the fraud, then it might not fall under 1.6 at all. Hypo: Your rep a client sue for fraud, but he hates one of the investors who sued him, he plans to kill him... can you call the intended victim and inform him? You can disclose to the victim under 1.6b1.

A. Waiver

1. Hypo: You client confesses that she stole money from her ER and then lost it all at a casino. You give her advice for when she is contacted by the police. This would probably be protected by the privilege, since the wrongdoing has already occurred. What if she gets so excited about the conversation she had with you that she tells her friend all about it? Has she waived the privilege? Perhaps - the privilege will be waived if the client (or the lawyer) reveals the privileged information to a nonprivileged person. a) Facts are not protected, but the communication is. So if opposing counsel asked my client if he ripped off a bunch of senior citizens, then that is not a privileged question, they are facts.

A. Client Identity

1. In general, the identity of a client is NOT privileged, but the law is not entirely settled. 2. In a few cases, client identity is held to be privileged only where it represents the last link in a chain that shows that the client had committed a criminal offense. 3. Then prosecutors have sought to learn the clients' identities and the lawyers invoke the privilege, judges have sometimes required disclosure while other times the privilege has been upheld. 4. The Restatement takes the view that identity should be privileged when revelation of identity would reveal the content of lawyer-client communications. 5. Example: Hit and Run: Do you have to tell the name the prosecutor wants to know? Her name would be confidential (duty not to tell) under 1.6 because it deals with representation. Am I ok under attorney-client privilege? Can you assert the privilege dealing with the identity. Generally it's not privilege but if it will incriminate them its called last link. Last link for the persecutor, meaning he has all, but the name.

I. The Attorney Client Privilege and the Work Product Doctrine A. Confidentiality and attorney-client privilege, compared

1. Need communication, in confidence, between privileged persons, for legal services/advice. 2. The privilege falls within the broad scope of the duty of confidentiality. It is possible that some subject matters of the privilege may fall outside the scope of the 1.6 duty, like when lawyer-client communications fall within an exception to 1.6. 3. Difference in source: Recall that the duty to protect confidences is imposed by ethical rules, violation of which can result in discipline, while privilege is a matter of evidence law, which governs what kinds of evidence can be admitted in court and can be used as a shield to prevent evidence from coming in. 4. Under the privilege, generally, neither lawyer nor client may be compelled to testify in court about protected communications, and neither can be penalized for noncompliance with an order to reveal information. In instances where a court order might override the duty of confidentiality (1.6(b)(6)), the attorney-client privilege can be invoked to crush the court order. If privileged information is sought, the lawyer claiming the privilege might quash a subpoena or object to compliance with a discovery request. 5. Scope a) The confidentiality duty is very broad, covering all information related to the representation. b) The privilege however covers only a relatively small part of information - the part involving communications between lawyer and client in which the client is seeking legal advice or other legal services. The privilege can only be claimed as to the parts of a communication that are privileged. a) Recall that the duty of confidentiality is a duty to keep your lip buttoned, but the privilege is a shield to resist disclosure where it applies. b) "Common law evidence rule" is not technically correct for La. La.'s Code of Evidence provides a sophisticated provis

The Crime-Fraud Exception

1. No privilege if a client seeks assistance with a crime or fraud a) Even if the lawyer-client communication satisfies all the elements for privilege, no privilege attaches if the client consults a lawyer for assistance (in furtherance) in committing a crime or fraud. Also, there is no privilege for a conversation if the client later uses the lawyer's advice or services to commit a crime or fraud. b) Note that the client's intention in fact to perform a criminal or fraudulent act triggers the crime-fraud exception. It will not matter whether the client knows the act is criminal or fraudulent. (1) What if a client asks a lawyer for advice, learns that the planned conduct is criminal, and doesn't commit the crime? The conversation should be privileged. One purpose of the privilege is to enable clients to get sound advice from lawyers and avoid committing criminal acts - if the privilege were to apply here, that would further this policy. (2) What if a client consults a lawyer about a plan he knows involves a crime or fraud, but conceals facts from the lawyer that would reveal the illegality of the scheme? The lawyer's knowledge or intentions are irrelevant. Only the client's intentions are relevant - no privilege in this case. HOWEVER, if it is the lawyer with the criminal intent and the client is pure, then the conversation will be privileged. WEIRD. c) What if a client asks for advice about a crime he plans to commit, but does not ask the lawyer to give advice that assists him in the act? There is a distinction drawn in this case. A request for advice about whether a certain act is permitted under the law will be privileged in most states. d) In addition, a communication where a client asks his lawyer for advice about a past act that was criminal or fraudulent will be privileged, as long as the past act is really in t

A lawyer is an agent for his client, who is the principal.

1. There is a concept that says that if you use information that you received from your principal that causes an economic benefit to the agent, then the proceeds must go back to the principal [agency/principle rule but professions rule]. Does it hold true in this instance? 2. Disclose 3. OR USE - engages to client's disadvantage. You know advantage (A) and you know one of your other client's are looking for real estate (B) so you tell (B) hey I know of a good deal and buy it b/c prices are going to go up b/c (A) is developing. You are not using for your benefit OR disadvantage but this would be disclosure not use. Can't do it b/c revealing 1.6 information. Make sure know difference between the two [disclosure or use].

A. The Law Governing Lawyers State Ethics Codes

1. Through the state's adoption (and modification of) the Model Rules

A. The Work Product Doctrine

1. Work product prepared in anticipation of litigation a) This is related to, but separate from, the attorney-client privilege. This doctrine protects notes and other material that a lawyer prepares "in anticipation of litigation" from discovery in pretrial civil proceedings. b) This applies to documents that a lawyer prepares or collects while working on pending litigation or on a matter in which the lawyer knows that a lawsuit is about to be filed. c) This may protect some documents that are not covered by the attorney-client privilege because they do not relate to communications between a lawyer and his client. d) Protection of work-product is not absolute, but will probably apply in cases where the document reflects the lawyer's strategic thinking. e) Hypo: You're working on an auto accident case where there are witnesses that saw the accident. You go talk with them and take down notes about their statements. (1) Do the statements fall under the attorney-client privilege? No, because the communication was not "between privileged persons." (2) The work-product doctrine might protect the notes - it protects all material that the lawyer prepares in anticipation of litigation. (3) What is the point of this doctrine? (a) To protect the lawyer's mental impressions. (b) To prevent opposing counsel from freeloading. So if we got a hypo like that on exam, analyze that it may fall under atty-client privilege and work-product doctrine You can defeat discovery with the privilege doctrine Evidentiary privilege Shield

the law governing lawyers advisory ethics opinions

1. Written by committees (of lawyers and non-lawyers) formed by the ABA, state bar associations, etc. These committees are separate from the Office of Disciplinary Counsel.

Factors considered in Aggravation [get worse penalty]

1.) Discipline History 2.) Motive of dishonest or selfish 3.) Multiple offenses 4.) Obstruction of the disciplinary process 5.) Present false evidence 6.) Was the victim vulnerable 7.) Refuse to acknowledge wrongful nature 8.) Experience in the practice of the law

Mitigation factors

1.) Physical disability 2.) Free disclosure to board; you are cooperative 3.) Absence of past discipline 4.) Absence of dishonest or selfish motive 5.) Emotional problems 6.) Good faith efforts to engage in restitution to fix problems 7.) Small amount of practice time (exception for the lying weasel)

Mal Practice in General: Negligence

Duty: Duty to the client: (attorney client privilege). In order to get malpractice need the attorney/client relationship and need duty of care associated with it. Lawyer failed to exercise "the competence and diligence normally exercised by lawyers in similar circumstances." We don't care how long you have been in practice Location we normally don't take into account wither but in LA we look at the standard of care for a lawyer in the "locality" involved. - What if pro-bono: standard of care is the same. - What if a wealthy classmate client wants to pay attorney a lot per hour: the cleanest way to do it is to refer the client to another attorney (avoiding malpractice issue). [or get help from co-counsel or learn it] Breach: With breach if criminal need to prove innocent; civil is "case within a case" need to prove you would have won but for the attorney. Legal mal-practice Lawyer owes a duty to ∏ That the lawyer failed to exercise "the competence and diligence normally exercised by lawyers in similar circumstances" That the breach of duty caused harm to the ∏ Causation Damages

Rule 4.1 Truthfulness In Statements To Others

In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. ...this one isn't likely to come up in a whole lot of cases, but it does come up. - You know the how deal is a scam [Reese's leases] do you now have a duty? Yes, but 1.6 cuts off the duty BUT under 1.6 its permissible (B)(2-3) so its not prohibited. - You CAN under 1.6(B)(2) - Also have a DUTY under 4.1 (i) Note that whereas 1.6(b)2&3 revelation is permissive, revelation under 4.1 is MANDATORY, unless prohibited by 1.6. (ii) This means that in any situation in which a lawyer's failure to reveal would constitute "assisting a criminal or fraudulent act," 4.1 requires a lawyer to reveal the information. This is clearly a little inconsistent with 1.6 - the lawyer's discretion to reveal information in 1.6 is totally restricted by 4.1. We're not sure why this is the case. It probably has to do with the timing of amendments and the failure to make all the rules consistent. (iii) Cmt. 3 to R. 4.1or the Noisy Withdrawal: This does not require that you have to disclose all the facts of the fraud, but you have the option of disaffirming the documents and withdrawing from representation. The injured third party may inquire further about the fraudulent conduct, but you don't have to do anything else. (a) Why isn't this in the rule? There was a big fight when the noisy withdrawal provision was included in the rule. Putting it in a comment was a compromise. (b) There has been revision since the rule was promulgated, and yet this still remains in the comment. We're not sure where the LASC stands on this. (1)

Breach of Contract Breach of fiduciary

Note that a criminal ∆ has to prove their innocence to sue for mal-practice Civil side à case within a case idea. You have to prove you would have won but for the mal-practice. The duty has to come from the attorney- client relationship. What about 3rd parties? Normally the answer is no because we no privity. But there are some circumstances. Think about if lawyer messes up will, then the heirs could sue. 66% of claims brought against lawyers working for 10 years 80% of claims brought against small firms. But really big payouts are for the bug firms typically. Oregon only place which requires mal-practice insurance. Lot of others states make lawyer reveal if has or not and let marketplace decide. LA does not do this. A lawyer can be liable to a 3rd party who is not his client: Among the 3rd parties to whom a lawyer owes duties are prospective clients and people who are intended beneficiaries of the lawyers work for a client, such as those who will inherit assets under a will drafted by the lawyer. Opinion letter ensuring finance security of corporation and then go under.

the law governing lawyers motions to disqualify for conflicts of interest

Judicial opinions resulting from motions by opposing counsel to disqualify lawyers because of conflicts of interests form a substantial body of lawyer law. Many courts follow their own CML standards, which may not comport with the ethics rules, when determining disqualification issues.

Reporting another lawyer's misconduct to disciplinary authorities is an important duty of every lawyer.`

Lawyers are in the best position to observe professional misconduct and to assist the profession in sanctioning it. While a Louisiana lawyer is subject to discipline for not reporting misconduct it is our hope is that lawyers will comply with their reporting obligation primarily because they are ethical people who want to serve their clients and the public well. Moreover, the lawyer's duty to report professional misconduct is the foundation for the claim that we can be trusted to regulate ourselves as a profession. If we fail our duty, we forfeit that trust and have no right to enjoy the privilege of self-regulation or the confidence and respect of the public.

Malpractice Insurance

Most state (not LA) lawyers are required to tell clients if they have malpractice insurance or not it's the idea of let the market decide if they want lawyers with mal practice insurance so it does not become another regulation for lawyers. Actions for legal malpractice... p.20 in supp. Our LA statute is very lawyer friendly 9:5605. We have a prescriptive component and a peremptive component. You are barred within 3 years total from the alleged mal practice but you have prescription of 1 year from time of malpractice OR if didn't know when you knew or should have known. Don't count the day the incident happened. Also, exception for fraud. · La. Rev. Stat. 9:5605. Actions for legal malpractice o Jan 5 2008 § What happened on this day what a real estate closing and there was a defect in the act of sale and now it's invalid. o Sept 20 2008 § Client learns of this o When is the latest the client can sue? § (A) One year from the date of the act or from discovery § Sept 21 2009 o What if the date changes to Sep 10 2010 when client finds out § The preemptive period cuts it off at Jan 6 2011 (as opposed to Sep 11 2011) o There is a 3 year preemptive period and 1 year prescriptive period o Exception for fraud

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

character and fitness inquiry

a) In general (1) The basic point of this is to assess whether the applicant will practice law in an honest and competent manner. An application that raises significant problems of moral character may lead to an investigation by the bar and a formal hearing on the applicant's qualifications for admission. In most states there is no published list of what conduct gives rise to an inquiry and no consistency in practice. (2) Bar admissions committees, courts and the Model Rules say to be scrupulously honest in everything you say, even if your disclosures could delay or prevent your admission to the bar. Lying or concealing information are usually grounds for denial of admission. Just tell the truth and then it's just your burden to prove good character. (if there is an investigation). (3) The information you disclose on your bar application must be consistent with the information you disclosed on your law school application. If your information is incomplete on the law school application, consider making a belated disclosure to the law school of this information in addition to adding it to your bar application. If the information is serious (homicide conviction), then the law school may take disciplinary action.

Discussion of Ethics vs. Mal practice

The scope of the model rules states "Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other non-disciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapon. The fact that a Rule is a just basis of a lawyer's self-assessment, or for sanctioning a lawyers under the administration for a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement for the Rule. Nonetheless, since the Rules do established standards of conduct by lawyers, a lawyer's violation of a rule may be evidence of a breach of the applicable standard of conduct." Last sentence takes away that separation of ethics and mal practice. - Many people would expect the ethics requirements to be higher in standard than mal practice if not it makes for a not friendly working environment fro lawyers always after one another. Nevertheless it seems ethics rules can be sued as a breach for mal practice. - LA took out the aspirational reach of any ethical rules. History of the DC (rules which help punishment) and the EC (ethical rules for feel good but could not be punished well people were being punished for violating the EC's).

Client Protection Funds

This is a fund in each state for which money is set aside to help clients recover if their lawyers steal their money. Mal practice does not help you for intentional acts OR theft. We have on in LA to help but likely not that helpful. There is a 25,000 cap.

the law governing lawyers contract law

This usually comes up in cases where courts nullify K's that lawyers were parties to or contracts negotiated by lawyers.

(6) to comply with other law or a court order.

a) Some consider these Rules to fall within "other law." b) Recall that many of the rules prohibit an attorney from assisting a client in committing fraudulent or criminal acts. c) It may be possible that in order to comply with these fraud provisions, that disclosure would not only be permitted, but would be mandatory for you to avoid assisting in the fraud or crime. d) It is supported by solid commentary that it is an exception to the 1.6 duty where a failure to disclose would result in a lawyer assisting a client in fraud. e) Whether a law really requires such reporting by lawyers is a matter of interpretation of that other law, not of the rules of professional conduct.

work product doctrine a qualified protection

a) A judge can still order disclosure of documents falling under this protective rule if the opposing party can show: (1) "Substantial need" for the material, and (2) That it is unable "without undue hardship" to obtain the substantial equivalent of the material by other means. b) This is a vague standard, and usually lawyers don't know when their documents will be protected by the doctrine and when they won't. c) Note that an exception like this does not exist for the attorney-client privilege. d) This showing of substantial need can trump the work product doctrine only for Ordinary work product - compiled by the lawyer but does not contain the lawyer's "mental impressions." (1) Substantial hardship will get you the text of the accident transcript but you are not going to get the mental impressions. (2) Not sure what extraordinary need would never get to the metal impressions. You are paying for litigation in auto accident case. You interview witness and take notes and keep in file. Witness dies before trial occurs. Are the notes work product? If it is there is a substantial hardship for adversary than there is access. Probably can show this is there is a dead person.

institutions that regulate lawyers the ABA

a) State bar associations are independent of, and not subordinate to, the ABA, although a majority of the ABA House of Delegates is selected by state and local bar associations. b) Although the ABA is the primary drafter of lawyer ethics codes, the ABA has only limited governmental authority. The Model Rules of Professional Conduct have no legal force unless adopted by the state's highest court. c) State courts are under no duty to consider a rule just because it was proposed by the ABA or analyzed by a state bar association. d) Note: The ABA adopted its first set of Canons of Ethics in 1908, that was largely based on the Alabama ethics code derived from lectures by Sharswood. The adoption of the model code didn't happen until the 1960's, and then the current model rules were adopted in 1983.

A. Exceptions to the Duty to Protect Confidences 1. In general

a) A lawyer cannot reveal confidences unless: (1) The client gives informed consent; (2) The disclosure is impliedly authorized in order to carry out the representation; OR (3) It is permitted by paragraph (b) b) 1.6(b) provides a list of permissive excepted circumstances in which the lawyer may reveal client confidences, to the extent the lawyer reasonably believes necessary (narrow the content as much as you can and only tell as many people as you need to). However, before making a disclosure under (b), you should try to persuade your client to take action that will obviate the need for disclosure. c) List of exceptions: (1) To prevent reasonably certain death or substantial bodily harm. (2) To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to 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. (a) This addresses the situation where the lawyer doesn't learn about the crime/fraud until after its been committed. (b) This does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning the offense. (4) To secure legal advice about the lawyer's compliance with the ethical rules. (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 on conduct that lawyer was involved in, or to respond to allegations in any proceeding co

1. Waiver as to a conversation by disclosure of part of it

a) A partial disclosure of privileged information may be a waiver of the privilege as to the part of the conversation that relates to the subject matter on which the client volunteered testimony.

(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;

a) Cmt.: A lawyer can disclose information in response to an allegation/assertion that he's engaged in fraud. In this instance, the lawyer will not have to wait until suit is filed to make the disclosure. b) There are two main instances where this would be used: (1) To defend against allegations of misconduct (malpractice, disciplinary or criminal proceedings). He has to defend himself. (2) To collect a fee. You can say I will sue you and in that suit I will lay out what I did for you. OR Do you remember you told me about your affairs - do you want me to reveal these...pay me. (a) What I did - yes as to say why I should be paid (b) Affair - no c) No more than necessary may be revealed. In these instances, the lawyer must still take steps to narrow the amount revealed - the disclosure should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. d) The lawyer should notify the client before using confidential information in self-defense and should seek solutions that do not require the disclosure. The lawyer may, however use the information even where the client does not consent. e) The lawyer's right to respond (and thus disclose confidences) arises when an assertion of such complicity in wrongdoing has been made, rather than when the complaint is filed. The lawyer does not need to await the commencement of an action or proceeding before this right is triggered. f) A lawyer may reveal confidences even if the allegation is made by an injured third party rather than by a client, and even if the lawyer is not the primary target of the allegation.

1. Murder for Hire (4-1): another prisoner overhears a prisoner's confession about something. Does privilege apply in a case where a prisoner was shouting and another prisoner overheard? So it was probably not "in confidence." Lawyer should ask for a private room, and tell the people listening that they cannot listen. What if there was no private room? Just find the most private spot. So when an attorney is speaking with the client, the attorney should make sure no one else is in the room or within earshot. If there is a reasonable expectation of privacy, then that should be OK.

a) Communication - yes b) Confidential - ? Practical consequences of this situation. If attorney/client privilege does not apply then the prosecutor can say "When you and lawyer were talking what did you tell her?" Respond with attorney client privilege but if it was not confidence then huge problem. We want to avoid discovery. c) Between privileged persons - yes d) Legal services/advice - yes

1. Communication

a) Communication" basically encompasses any mode of exchanging information between attorney and client. b) The privilege only protects against disclosure of the information itself, not against disclosure of the underlying facts that might have been communicated. c) Note that communications with a prospective client or lawyer are also privileged. d) Last link doctrine e) Privilege protects the communication not the underlying facts. (1) Did he kill wife? That is fact but the answer is protected if he told lawyer and also 5th amendment. (2) What did you talk about? Objection. (3) Objection noted but still answer? No don't need to answer and tell client not to answer. (4) Now you tell him again no to answer but he wants to answer. Tell them its over

1. Privileged persons

a) Communications will only be protected if between lawyers and clients. However, this includes communications with agents of a lawyer. b) While a lawyer should not casually allow a third person to be present during a confidential communication (might be a waiver of the privilege), what other persons might be covered by the privilege anyway? (1) Interpreters (2) Persons to enable or facilitate communication or to provide psychological support during a lawyer-client interview (like a client's psychologist) (3) Parents of a minor child client (4) Guardians of incompetent persons

1. In re Michael G. Riehlmann (La.): Leading case on R. 8.3 issues

a) Facts: Fellow attorney friend (and former assistant DA) who was dying of cancer revealed to Riehlmann that he concealed evidence that could have exculpated a former defendant. At the time R was having personal and family issues. R disclosed the information 5 years later when he discovered the former defendant was on death row. If R had not come forward with the information, the guy would have been put to death. b) This is serious enough that it would have to be reported under 8.3. c) Because he didn't withhold the information maliciously, R was just publicly reprimanded. Was this too light or too heavy? Does this penalty make it seem like the LASC doesn't take 8.3 too seriously? d) Brady Material: information that could shed light on the defendant's penalty or prosecution must be brought forward by the prosecution. They have to come forward with exculpatory evidence. e) What is "knowledge" under R. 8.3? (1) "A lawyer will be found to have knowledge of reportable misconduct, and thus reporting is required, where the supporting evidence is such that a reasonable lawyer under the circumstances would form a firm belief that the conduct in question had more likely than not occurred." (2) Thus, absolute certainty is not required, but there must be more than a mere suspicion. (3) A "reasonable time under the circumstances" is interpreted as "promptly." 5 years was not "prompt" under the circumstances. [he waited too long] (4) The obligation to report is satisfied when, in La., you have reported to the Office of Disciplinary Counsel. If you report to anyone else, it won't count! [didn't report to correct person] 1. Mitigating Circumstances? Lawyer says the reason he didn't report it was due to his mental instability (family member's heart surgery, depression, marriage collapsed, etc.) Even if these were mitigating, seems un

1. In re Himmel (IL 1988)

a) Facts: Himmel learned of lawyer misconduct through a client. Himmel sues the lawyer that withheld the client's money. They enter a settlement agreement - will not report if a certain amount is paid. b) Held: Himmel suspended for not reporting the misconduct of another lawyer. c) Himmel's first defense: He didn't report the other lawyer because his client told him not to. (1) It's good leverage to say that if you don't pay your client, then you'll be reported. R. 8.4(g) in La. prohibits doing this: "It is professional misconduct for a lawyer to: (g) Threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter." (2) The court rejected this defense. Himmel should have known better than to listen to his client. d) Himmel's second defense (also rejected): Attorney - client privilege. However, the privilege was abrogated as Himmel discussed the misconduct with too many other people, including the client's own mother. When the offending lawyer signed a settlement K admitting his wrongdoing, this also broke any existing attorney-client privilege. e) Most state courts have indicated reluctance to follow the Himmel lead, although NY has adopted a "law firm rule," which is an attempt to hold an entire law firm responsible for lawyer misconduct, even when an individual culprit cannot be identified.

1. In re Peters (Minn. 1988)

a) Facts: Law school dean sexually harassed student workers and secretaries in his office. He didn't rape them, just inappropriately touched their ribs, hair and hips. The victims responded by trying to avoid the situations. b) What part of 8.4 did he violate? It is hard to find a good match, and we must use a stretched argument to make it fit. Part (a) could be violated if we can find another rule that could be engaged by this behavior. c) The sanction in this case was a public reprimand, which seems a little light. This was probably due to the fact that he was the dean rather than a fellow student. Fear of the students getting expelled because this man was the dean. d) Questionable conduct by law professors: [even if not practicing] (1) Sexual harassment (2) Plagiarism (of the writing of their research assistants) (3) Neglect of teaching responsibilities (not performing in class while collecting fees for consulting on the side) (4) Manipulation of grades or teacher evaluations (punish/reward certain students) (a) One teacher engaged in this behavior and remember the ODC can prosecute you for a violation even if the school does nothing. In ODC world this would fall under 8.4(c). Engaging in dishonest, fraud, deceit and misrepresentation. (5) Aggressive or discriminatory behavior

1. 3-2 Worldwide Bribery

a) First, as a matter of public policy, should we allow communications regarding bribery to be privileged? Yes, because if we didn't protect the communication, this would discourage corporations from voluntarily looking at their own behavior. The attorney-client privilege always comes at a price, since it restricts the free flow of information. b) In this instance, the officers of Horizon Corporation were engaged in rampant bribery, and as general counsel, you have interviewed employees of the corporation to verify the story. You and the president of the corporation agree to contact the US attorney, admit to the bribery in general terms and offer to pay a civil fine. The US attorney responded that federal prosecutors are willing to cut a deal with you after you turn over evidence of the bribery. It seems reasonable that prosecutors would want to know all the facts before making a deal. The US attorney threatens that if you don't cooperate, then they will come after the corporation themselves, since they now know that the corporation broke the law. c) The bad part? The employees that disclosed information to attorneys are being hung out to dry, since their information is being handed over to prosecutors. The corporation as a whole is helped by the deal, but at the expense of the employees that shared information. d) The people that get shafted here were those that the SC tried to help in Upjohn with the subject matter test. e) The corporation might just want to tell the government to shove off. The government usually won't be able to get their act together to come after the corporation within the statute of limitations, so they might back down. (1) McNulty policy - US attorney office offers cooperation to reduce sentences. Corporation might be disinclined to hand over information it waives the privilege. Giving us the i

1. The Exception for R. 1.6: 1.6 usually Trumps all other rules, it has a crushing effect.

a) How broad is this exception? R. 1.6 requires lawyers to keep confidential all matters relating to the representation of a client. b) Some think that R. 1.6 swallows the reporting rule. Most of the information lawyers receive comes in connection with the representation of a client! c) This was one of the defenses Himmel tried to raise. It failed there, but that doesn't mean that it might not be successful somewhere else.

1. Compliance with court orders

a) If a judge decides that the communication is not privileged and orders it to be turned over, this will not waive the privilege. b) Turning over information in response to a court order does not waive the issue for purposes of appeal or of other litigation.

A. Professional Discipline and the Disciplinary System 1. In general

a) In most states, the highest court runs the disciplinary system. An independent office set up by the court uses paid staff attorneys to investigate and prosecute charges. Some of these offices are part of the state bar associations, but most are independent of them. b) The disciplinary system is not perfect, as the offices dismiss many meritorious complaints and most aggrieved clients don't know anything about it. Also, it can take years to get through the lawyer disciplinary system. c) Grounds for discipline? A lawyer may be disciplined for conduct that has nothing to do with the practice of law. It does not matter whether the violation of the ethics code occurred in course of law practice or not. Many lawyers who have held high public office have been disciplined for misconduct that related to their performance of their duties as public servants (i.e. Nixon) - agencies tend to be vigilant in prosecuting misconduct by lawyers in highly visible positions of public trust. d) What about committing a crime? A lawyer may be disciplined for the commission of any criminal act that violates an ethical rule or that reflects dishonesty, untrustworthiness or lack of fitness to practice. The predicate for discipline is the commission, not charge or conviction, of a criminal act. e) Vicarious discipline? Lawyers may be disciplined for violating a rule by inducing or assisting another person (or employee) to do something that violates the rules if done by a lawyer. f) What about interstate violations? A lawyer may be disciplined for violation of the rules regardless of whether the violation occurs in the state in which the lawyer is admitted. While most ethics codes subject only lawyers admitted to practice in that state to discipline for violation of the rules, some states allow discipline of any lawyer who violates a rule of th

1. Materials not created or collected in anticipation of litigation

a) In order to be protected, the materials created or collected must be done so in preparation for litigation. It is only the lawyer's need to use the information in litigation that creates a degree of protection. b) If certain information would have been collected routinely, but was also collected because litigation was anticipated, most courts will deny protection to the information. c) Restatement: The work product doctrine applies in rulemaking proceedings as well as in litigation as long as the rulemaking is sufficiently adversarial. d) What if a client gives a lawyer a set of documents relevant to impending litigation? These documents will usually not be protected, unless the lawyer can demonstrate that their selection and compilation of the documents reflects their litigation strategy.

1. La.'s Disciplinary Procedure

a) La.'s disciplinary procedures are very similar to that of other states. b) The reading would suggest that it is not likely that someone who engages in egregious behavior will necessarily get caught. This may not be true in La. c) Office of Disciplinary Counsel: La. has a whole office of staff attorneys who investigate and prosecute La. lawyers. (1) [the hearing committee first level of trouble is made up of two attorneys and one public member] (a) 2 members of bar and one non lawyer (b) Why the non lawyer? Do not want all lawyers to regulate themselves. Might be too generous to the lawyers. (2) Complaint is filed, the office will screen it to determine if it should be investigated. Many cases are screened out this way. (3) If not screened out, the ODC will send a letter to the lawyer, stating that the complaint states a claim and that the ODC requires a response. (4) If the lawyer does not respond, the allegations will be treated as true. (hearing) (5) If the ODC is not satisfied with the response (hearing), then there will be a hearing. It is not a good idea to be your own lawyer in this instance. Also good idea to show up. (6) A decision will come out of the hearing (no jury and prosecutors is part of judiciary), and discipline will be recommended. If don't like it appeal to Disciplinary board. (7) You will go to the disciplinary board, who will then review what happened and recommend what else to do they will issue an opinion and if further appeals it will then go to the LASC. (8) At the LASC level, there will be oral argument just like for any typical litigation. d) La. is 4th in the country as far as lawyers that get disbarred through this disciplinary system. e) Possible sanctions in La.: (Know the names of them and the order they come). Section 10 (A) of Rule 19 in LA. (1) Permanent disbarment (only in La.) (

institutions that regulate lawyers clients

a) Large corporations and government agencies are major consumers of legal services and have a great deal of bargaining power. b) Law firms that work for these large institutions must usually agree to comply with certain policies on billing and other things as a condition of employment.

A. Exceptions to the Duty to Protect Confidences 1. Client frauds and crimes that cause financial harm

a) Lawyers are not permitted to assist clients in committing criminal or fraudulent acts, but sometimes lawyers help clients file papers that include false information without realizing that the information is false. What are the lawyer's obligations to his client and/or the harmed party? b) Enron and the Sarbanes-Oxley Act (1) After Enron, which involved massive corporate fraud committed by accountants and lawyers, Congress passed SOX to prevent further episodes like this. (2) SEC rule: Lawyers who practice before the Commission or who advice companies regulated by the Comm. are required to report any information about securities fraud to the highest official to the corporation. It requires the lawyer to take action if within scope he must go up corporate chain to get is resolved. This reach is narrow. Blow whistle up corporate later. Does not require lawyer to go outside. (3) The SEC only refrained from imposing more stringent reporting obligations on lawyers because the ABA amended its model rules to permit lawyers to blow the whistle on their clients' frauds. (4) Under rule 1.13, there is a circumstance that a lawyer could be required to go outside the corporation to report a violation...more later... c) The ethical rules on revelation of client crimes and frauds (1) Before Enron, the model rules gave lawyers no discretion to reveal confidential information to prevent or mitigate the harm from client fraud. (2) The initial proposal was to make disclosure of client crime and fraud mandatory, but this was withdrawn. In substitution, lawyers were allowed discretion to decide whether to reveal those crimes and frauds. These exceptions are now contained in (b)(2) and (3). B2 and B3 are the only provisions under 1.6 that have to deal with the lawyer's "services" (3) These exceptions look very similar but there are subtle

institutions that regulate lawyers law firms and other employers

a) Many employers have their own additional rules of practice. Larger firms usually set up an ethical infrastructure to provide training, offer advice and prevent conflicts of interest. b) Many firms will designate lawyers to be ethics counsel or loss prevention counsel. Others will form ethics committees. c) This is also a type of "private" law to govern lawyers' conduct, and will often times be more strict than the state rules.

1. Upjohn Co. v. United States (1981)

a) Members of the Upjohn Corp. were bribing foreign officials. The company set up an internal investigation (questionnaires). b) Who has the attorney-client privilege where the client is the corporate entity? The corporation has the privilege, and the employees and officers theoretically do not. c) Before this case, the control group test was used, where the people who have control over the corporation will fall within the scope of the privilege. This only included fairly high level corporate officers. d) This case adopts the subject matter test, where the privilege is extended to communications with any employee or agent, so long as the communication related to the subject matter of the representation. e) Federal common law used "subject matter test" but not for the states. So now we do have protection to Employee if he is giving information to the corporation. Notwithstanding it can still be waived if the corporation waive the privilege it will expose employee to the bribery claim. (1) So the attorney client privilege is for the corporation but the tests determines whos conversations are privileged. f) The "privileged persons" aspect of atty-client privilege elements. g) Held: In federal proceedings applying federal law, corporate entities could claim attorney-client privilege, and the scope of the privilege should depend on the subject matter of the communication, not on who was doing the communicating. The corporate attorney-client privilege in federal proceedings was expenses to communications between lawyers and low-level employees, as long as the purpose of the communication is for the company's legal affairs. h) What about in state courts? They are not bound by this decision. As of 1997, 14 states had adopted Upjohn or some variant of it. 8 states still had the control group test, and 28 states had not decided

1. The Responsibility for Ethical Misconduct by Colleagues and Superiors

a) Notes that the rules that follow do not impose firm-wide responsibility, although some states do embrace the "law firm rule." You will generally only be responsible for the conduct of another lawyer where you supervise them or are in a managerial capacity. b) See Rule 5.1:

institutions that regulate lawyers prosecutors

a) Prosecutors have enormous discretion as to whether to file charges against particular D's, and an increasing number of lawyers are indicted and prosecuted for crimes, some of which were committed during the practice of law. b) Events such as Watergate and the banking crisis in the 80s shattered public assumptions that lawyers would never be involved in criminal activity - this made any hesitation prosecutors had about going after lawyers vanish.

1. The Clandestine Videotape a) Client rents out tables and chairs for parties. At a party, a chair breaks and a guest alleges she is permanently hurt. Guest sues client for failing to inspect chairs. Client hears that guest was not as hurt as she alleged, and you hire a private investigator to secretly videotape her. She realizes she is being videotaped, and her attorney asks you for the tape.

a) R. 1.6 cannot be used here as a shield against this evidentiary issue. We want to assert the attorney client privilege. b) The real question here is whether the video tape is "communication" for purposes of the privilege. It appears that the communication is between the opponent and the lawyer's agent. However, it could be argued that the agent is just communicating what he saw to the lawyer through the videotape. If he were to detail what he saw in a letter, it would be privileged, so why not a videotape? S doesn't think the videotape itself was subject to the privilege, as he doesn't buy that it was a communication. c) Would a conversation between a lawyer and his investigator be privileged? YES - communications between a lawyer and his agent will be privileged. Privileged persons is a broader category than just attorney and client - the scope of the privilege widens when we start talking about all the persons that can be subject to it. d) What if the lawyer has a conversation with his client, and the lawyer has been bugged because he's gotten in trouble with the feds? This would probably not defeat the privilege, as long as the parties had a reasonable expectation of confidentiality. This might be problematic where it was the lawyer that installed the listening device. e) What if the client is asked about a privileged discussion by opposing counsel, but the client wants to answer the question? The client is always free to waive the privilege, but you should probably speak with him privately in the hall about keeping his mouth shut. The opposing counsel should give you this courtesy.

1. 1-3 The Little Hearing

a) Recent law school graduate working with solo immigration law practitioner. He assigns the new lawyer to represent a client in a hearing, but she isn't prepared at all. All he does it hands her a treatise. b) See Rule 1.1 and the requirement of competent representation: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. c) What happens if you don't satisfy the obligations of R. 1.1? Would the sanction have been different if she had been practicing more than 2 days? d) Under rules 5.1 and 5.3 e) Back to R. 8.3: Did the other lawyer observing the associate have a duty to report her incompetence? Note that incompetence may fit into the phrase "fitness in other respects" in R. 8.3. f) Under R. 8.3, do you have to report yourself? (1) The phrase, "a lawyer who knows that another lawyer..." implies that you don't have to report yourself. (2) The LASC has implied that reporting yourself to the ODC is a good thing - the court regards the reporting duty as applying to yourself. However, this is inconsistent with the plain meaning of the rule. (3) While there may be no affirmative duty to report yourself, if you do, it might be a mitigating factor considered by the court.

Protection of information if there is a reasonable prospect of harm to the client's interests

a) Restatement of the Law Governing Lawyers (1) The rule prohibits revelation of such information only if there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information. (2) "Adverse effects" include frustration of client's objectives, material misfortune, disadvantage or other prejudice, financial or physical harm to the client, or personal embarrassment. (3) This rule is considerably narrower than R. 1.6 - there is a lower standard of secrecy and not as much will fall under "confidential client information." It allows lawyers to expose much more information. (4) 1.6 versus Restatement (a) 1.6: Bright line approach (b) Restatement: Distinguishes between information that could harm the client and that that wouldn't. (5) Despite this rule, the LASC seems to follow R. 1.6, just the way it is written in the model rules. (6) How do you know if there is a reasonable prospect of harm to a client's interests? This depends on whether a lawyer of reasonable caution, considering only the client's objectives, would regard use or disclosure in the circumstances as creating an unreasonable risk of adverse effect either to those objectives or to other interests of the client. This is basically a judgment call. 2. Misc. stuff a) Doctors and other professionals are subject to a duty of confidentiality as well. b) This duty will apply whether you are talking to a friend, your spouse or other attorneys that have no involvement in the case. c) The confidentiality duty lasts forever, not just when the case is resolved. d) The policy behind R. 1.6: To allow the free flow of information between attorney and client, so that the client can get the best representation possible. The administration of justice is the societal i

3-8 An Investment Project

a) Suppose you purchase a piece of property with knowledge that your client plans to build a shopping center on the parcel next to it. You would violate 1.8(b) if you are doing this to stiff your client, since the client has an interest in this property. Sometimes, mere disclosure isn't considered use. "insider trading" for example is use. If it's not to the client's disadvantage, then it doesn't violate 1.8b. Although the ethics rules might not apply, other rules might. b) What if you tell another client to buy the property? Here, you're not only using the information for the benefit of another, but it's also a disclosure prohibited by R. 1.6. Purchasing the property yourself, you would not violate 1.6. c) What if the client has no interest in the nearby parcel? In this instance, you are using the confidential information provided by your client to your advantage, but not to your client's disadvantage, since the client doesn't care about this piece of land. d) Rule 1.8 Conflicts of Interest: Current Clients: Specific Rules (1) (b) (2) Cannot do anything against your client's interests (3) If you have their consent prob ok à but what if they don't? (a) You only need consent if the rule engages (4) If they do not want the property than the rule probably does not engage. e) Agent using information for the benefit of the agent without harming the principle. (1) General rule is that the agent has a duty to account for the profits made to the principle. f) Use the information v. disclosing the information g) What if you know about the advantage and you know that one of your other clients is looking for real estate investments. You also know that the original client does not want to buy it. So can you go to the investor client and tip them off? (1) What is the problem? (2) You are not using the information of your benefit OR

1. Communications in confidence

a) The client must reasonably believe that the communication is confidential. b) No privilege will attach to communication that occurs in the presence of other people. c) If the lawyer reveals privileged information to a friend, then this will waive the privilege, regardless of whether the conversation took place in private or public. It is the disclosure itself that waives the privilege. d) Ease dropper. Usual standard of reasonable expectation of privacy so don't think ease dropper you don't have threats of privilege. Lose privilege if client tells and if it's discussed in public. Plant watering people and listening to conversation then blown the privilege b/c don't have expectation. Fair number of cases with the cell phone. These conversations can be intercepted so no reasonable expectation of privacy so don't discuss on phone b/c privilege will be defeated. Now technology is so advanced and area problematic and no recent cases.

1. Communication for the purpose of seeking legal assistance

a) The communication will only be privileged if the purpose for seeking it was for legal advice. b) If the client is asking for business advice, the conversion is not privileged. If a conversation contains elements of both legal and some other kind of advice, then only the part relating to the legal advice will be privileged. This usually comes up in the context of in house counsel. c) A promise or exchange of money isn't necessary to create a lawyer-client relationship, so the communication can be for the purpose of seeking legal advice even if the lawyer isn't billing the time. d) Note that the privilege protects not only what the client says to the lawyer, but also what the lawyer says to the client. Some cases have held that lawyer communication is protected only if it includes information about client communications. The Restatement, however, favors a broader coverage of confidential communication by lawyers. e) If a client tells a lawyer some factual information during a privileged conversation, the client is NOT protected from being compelled to testify about these facts. Only the communication is protected. f) The privilege will protect documents as well as conversations, as long as the lawyer-client communications are for the purpose of obtaining legal advice.

work product doctrine 1. Protection of lawyer's "mental impressions"

a) The doctrine gives stronger protection to work product that reveals the lawyer's thoughts, strategies or mental impressions. b) This would include the lawyer's Opinion work product: own notes of his opinions, theories, observations or feelings. c) Some courts have held that even these documents can be obtained by a showing of "extraordinary circumstances." This is a much greater standard than undue hardship - the opposing counsel would have to demonstrate an extreme need for it, but S doesn't know what kind of showing they would have to make.

1. Protection of work product, not underlying information

a) The information contained in the protected documents can usually be obtained from the original witnesses or sources. b) The doctrine prevents freeloading on an opponent's work, but it does not enable the opponent to close off a lawyer's sources of information by getting there first. 2. If information is protected by both the attorney-client privilege and the work-product doctrine, then pick the shield that will give you the most protection. Note that there are exceptions for each, and these exceptions are different.

1. Procedure for challenging the privilege on the basis of the exception

a) The opposing lawyer must request documents based on guesses about what might exist or what the documents might contain. b) He might argue for an in camera inspection of the correspondence (judge reviews the documents privately to decide whether they are privileged).

1. Waiver by revealing privileged communication to a nonprivileged person

a) The privilege will be waived if the client or the lawyer reveals the privileged information to a non-privileged person (lawyer would need the authority from the client). The privilege belongs to the client's so unless the lawyer has express, implied or apparent authority to reveal the information this revelation would not effect a waiver of the privilege. b) What if a lawyer represents two clients jointly? Both clients are privileged, and therefore communication with one joint client in front of the other joint client will not waive the privilege. If these two clients hire the layer separately and the lawyer would like to privilege to apply to conversations where both are present the lawyer should obtain their agreement to participate in a "common" representation in which confidential information is shared among the three of them. That will preserve the privilege.

Waiver by putting privileged communication into issue

a) The privilege will be waived where the client puts the privileged communication into issue in a case. b) For example, if a client sues a lawyer for malpractice and asserts that the lawyer gave her certain incorrect advice, the lawyer may reveal the details of the relevant conversations for the purpose of self-defense.

A. Institutions that Regulate Lawyers 1. The highest state courts

a) The responsibility of self-regulation: The legal profession is largely self-regulated, and in most states, it is the highest court of the state rather than the legislature that is responsible for adopting the rules of professional conduct. Most of those involved in writing the ethical rules are licensed lawyers. As a result, the rules governing lawyers are more protective of lawyers and impose less regulatory constraint than they would if state legislatures wrote them. A lawyer who practices in two states is expected to know the rules of both jurisdictions. The inherent powers doctrine: Unlike typical law, courts make the ethical and procedural rules, implement them, interpret them, enforce them and hear challenges to the validity of them. In some states, the state constitution expressly assigns the courts authority to regulate the conduct of lawyers. In others, courts apply the inherent powers doctrine to say that regulating the conduct of lawyers is a matter of inherent authority because the courts need the authority to govern the conduct of those appearing before them. In some states, courts can actually strike down legislation that conflicts with professional rules (this exclusive authority to govern the conduct of lawyers is called the negative inherent powers doctrine).

1. The Law Governing Lawyers Legal Malpractice, Breach of K and Breach of Fiduciary Duty

a) The tort of legal malpractice may involve either a claim of negligence or intentional misconduct. This may be brought by either a client or a non-client third party. b) Under the Restatement, the elements include: (1) The lawyer owed a duty to the P, (2) The lawyer failed to exercise the competence and diligence normally exercised by lawyers in similar circumstances, and (3) The breach of duty caused harm to the P. c) A lawyer can be disciplined, sued for malpractice and criminally prosecuted all for one act of misconduct. d) A claim for breach of fiduciary duty is different from a malpractice claim in that it is a separate cause of action grounded in the common law of fiduciary duty, which applies to many other persons than just lawyers. A malpractice claim usually includes a claim for breach of fiduciary duty.

A. Exceptions to the Duty to Protect Confidences 1. Revelation of past criminal conduct

a) There is a broad consensus in the legal profession that information about most PAST criminal activity by clients should be kept confidential. The lawyer in this instance can no longer prevent the crime from happening by revealing the information, and society benefits by the fair administration of justice and by clients having unobstructed access to counsel. b) 3-3 The Missing Persons, Scene 1 (Belge case) (1) Facts: Garrow admits to you that he committed the murder he's being prosecuted for. He also confesses that he killed some other kids, and told you where he hid the bodies. (2) The actual attorneys in the case went out and found the bodies, to verify Garrow's story. Knowing the location of the bodies gave Garrow's attorneys leverage in the plea bargain. Garrow later sued his attorneys alleging ineffective assistance of counsel - the court held in favor of the attorneys, on grounds of privileged communication (3) What if Garrow had wished to keep the location of the bodies secret? R. 1.6 may provide an exception to disclosure. Just because the information was going to be used as leverage in a plea bargain does not mean that it was impliedly authorized by the client. (4) What is "informed consent"? See R. 1.0(e): The agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (5) The rule permits disclosure of client confidences to save a life or prevent substantial bodily harm. However, you are not compelled to do so - there is no obligation to disclose. c) 2-4 The Missing Persons, Scene 2 (1) What if the parents of the missing kids come to your office, asking if you know whether their kids are alive or dead? (2) Remember that you are permitted to d

institutions that regulate lawyers federal and state trial courts

a) These courts play an important role by: (1) Setting rules for the conduct of lawyers in litigation; (2) Sanctioning lawyers that violate these rules; and, (3) Hearing/deciding motions to disqualify lawyers with conflicts of interest that preclude their representation of particular clients. b) If a judge becomes aware of lawyer misconduct in a matter before the court, the judge can impose sanctions under federal/state civil procedure rules. c) Judges must report the misconduct to the lawyer disciplinary agency if it violates an ethical rule that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. d) Some federal courts adopt their own ethical rules, but most adopt the same rules that are in force in the states where they sit.

1. Protections for Lawyers that Blow the Whistle

a) Typically, if you complain to the disciplinary authorities about your supervisor, then you're likely to get fired under the employment at will theory. Law firms, fearing the loss of clients, bad publicity or higher malpractice insurance premiums, have often been hard on any whistle-blowers. b) A lawyer who is told to do something that the lawyer thinks is unethical has several options: (1) Accept the directions of the superior (2) Argue with the superior (3) Discuss the problem with another superior (4) Do more research or investigation to try to clarify the problem (5) Ask to be relieved from work on the matter (6) Resign (or be fired) from employment c) Wieder v. Skala (NY 1992) (1) The associate blew the whistle on a partner at his firm. (2) Rule: Retaliatory discharge for reporting a violation of the Rules is not allowed. When a firm discharges a lawyer for making such a report, the discharged lawyer can sue for breach of K. It is an implied term of the employment K that you won't be discharged for following the Rules. This is an exception to employment at will. (3) Jacobson (IL) declined to follow the NY court. (4) While this protection seems like a good thing, it may still not help in re: to employment opportunities. d) Kelly v. Hunton & Williams (Wolas case) (E.D.N.Y. 1999) (1) Facts: Kelly and 2 other associates realized that Wolas was billing for hours that he wasn't working (i.e. committing fraud). Instead of working, he was defrauding investors and clients. Some of the partners the associates went to at the firm were investing in this fraudulent scheme. There was a "hearing" within the firm, and Wolas was found not guilty - the associates were told that they had no obligation to take their allegations any further. Kelly was forced to resign (allegedly for "poor performance"), and this action was brought a

A. Exceptions to the Duty to Protect Confidences 1. The risk of future injury or death

a) Under this exception, it does not matter whether the possible harm will be perpetrated by the client or another person - what matters is the magnitude of the harm and the probability that it will happen. b) Cmt. 6: Harm will be reasonably certain to occur if: (1) It will be suffered imminently or (2) If there is a present and substantial threat that a person will suffer the harm at a later date if the attorney doesn't make the disclosure. c) The contemplated harm need not be criminal in order to fall under this exception. d) Spaulding v. Zimmerman (Minn. 1962) (1) Facts: There was a car crash at an intersection with no stop signs. Spaulding was riding in the Zimmerman car, and was severely injured. Spaulding's Dr. performed an evaluation on him, and said he'd be ok. The Zimmerman's Dr. also performed an evaluation, and the Dr. found an aorta aneurism. (2) Issue: Does the D's dr. disclose this to the victim? (3) The lawyers in this case decided not to divulge the information out of fear that the settlement amount would increase. The surgery that Spaulding eventually had to have costed more than what he was paid in settlement. (4) Here, the court threw out the settlement. While there was no requirement to disclose the aneurism, the settlement obviously did not take this fact into account. (5) The earlier version of 1.6 would not have permitted disclosure, so (6) The lawyers here could have disclosed this information even if the D's had forbade it, since it would have been to save a life. (a) 1.6 didn't include the exceptions we have now. 1st ask client's permission then if they say no use the exception. But remember even in LA this is a MAY under 1.6 but need to read with 4.1 b/c that is a MUST. (7) Suppose clients didn't want you to disclose it (even if they knew the severity of the medical condition)? Now, 1.6b2 let

Waiver by inaction

a) What if a lawyer does not realize that a question calls for privileged information, he does not object, and the client answers? b) This will be a waiver by inaction and no appeal will be able to reverse the process. c) It's the clients privilege. Document production and responds to discovery request and in the documents produced there are letters between the lawyer and client by mistake. The letters are about representation and subject to the attorney/client privilege. This is mal practice (you assert privilege in discovery we don't care if they are relevant). Should it be waived - it's the clients privilege but sometimes with discovery they balance to see if waive. Here it was the lawyers conduct. (1) If at cocktail party lawyer isn't going to waive attorney client privilege - client likely didn't give the "authority" to the lawyer to discus as party. Also not his agent at the party. (2) Deposition - waived by client because he said it and that is bad get mal practice ready. (3) Discovery - balance test.