PR
Matter of Michael Feldberg
• The difference between the practice of law and ordinary tasks performed by a lawyer matters • Privilege applies only to what is considered the practice of law, and NOT other ordinary tasks. Not everything a lawyer does amounts to the practice of law. Information is not privileged simply because it comes from an attorney.
Overcoming Work Product Doctrine
• To overcome the work product doctrine: o (i) they are otherwise discoverable under rule 26(b)(1); and o (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means
Purpose of Work Product Protection
• To prevent one party from free riding on another's confidential work • We want opposing counsel to do their own job and their own research
IAC: Strickland Analysis
(1) counsel's representation fell below an objective standard of reasonableness, measured by prevailing norms of practice reflected in: • (a) ABA standards • (b) Expert testimony • (c) Per se rules; non strategic choices (breach of fiduciary duty, duty of obedience or loyalty) (2) Counsel's deficient performance prejudiced the defendant (causation) • (a) actual prejudice: but for counsel's unprofessional errors, the result of the proceeding would have been different, i.e. not harmless error o proceeding is presumed to be reliable o probability is reasonable if it is sufficient to undermine confidence in the outcome of the trial • (b) Per se rules: denial of counsel during a critical stage of the proceeding led to a forfeiture of the proceeding itself o proceeding is presumed to have been unreliable or totally non-existent
Duty of Confidentiality Overview
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Duty of Confidentiality vs. Attorney Client Privilege
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Heightened Standard of Care Through Advertising
ASK → is this person held to a reasonable standard or a heightened standard because of the way they advertise? • Ex. The DUI King
Actual Authority
Actual authority - principal intentionally confers on an agent (aka real authority) • Express authority - authority given to the agent by explicit agreement, either orally or in writing (aka stipulated authority) • Implied authority - authority given to the agent as a result of the principal's conduct (aka presumptive authority)
Legal Malpractice Analysis
Analysis: Legal Malpractice 1. Client- Lawyer relationship (foreseeable plaintiff) • a) Offer • b) Acceptance • c) Consideration or detrimental reliance 2. Duty - proven through expert testimony or common knowledge that this is something a lawyer is supposed to do for a client • a) possibly required via principal-agent relationship • b) missed deadlines • c) failure to research the law 3. Breach 4. Causation • a) Actual - but for o But for test - asks if the plaintiff's injury would have occurred in the absence of the defendant-attorney's alleged malpractice o Commonly referred to as a "case within a case" or "trial within a trial". Have to prove that you would have won that case in the first place • b) Proximate - foreseeable consequences 5. Damages o (a) Actual o (b) Emotional distress o (c) Punitive
Apparent Authority
Apparent authority - authority that a 3rd party reasonably believes an agent has, based on the 3rd party's dealing with the client • When client manifests to a 3rd party that lawyer has authority • Could be based on the actions of the client
Work Product vs. Privilege
CHART:
Case Within a Case Analysis
Case within a case • FIRST: underlying claim needs to be established • SECOND: client has the burden of proving by a preponderance of the evidence that the accused lawyer's conduct fell below the standard of acceptable practice for attorneys doing similar work under similar circumstances AND that this substandard conduct prevented the client from recovering what he or she has established should have been recovered Expert can opine as to the standard of care for causation Expert can testify about appropriate remedies and damages • Jury must determine if a reasonable jury could find "but for causation" of the plaintiff's injury. P has large burden in presenting two cases against a trained lawyer. Under this doctrine, P has the burden of proof to show the cause was meritorious - i.e. P would have prevailed in the underlying action but for the negligent of the defendant-attorney
Mental Health & Application to the Bar
Clark v. Virginia Board of Bar Examiners • Of the 47 who answered yes over 23 years none were denied admission for mental health treatment ACLU-Indiana - Indiana University School of Law - Indianapolis Chapter, and Amanda Perdue et al. v. The Individual Members of the Indiana State Board of Law Examiners • Class action • Asserted that certain mental health questions on the state's bar exam application violate the ADA because those inquires treat certain applicants differently based on their mental health history • Court described question 23 as quite possibly the most expansive bar application question in the country - "from the age of 16-present, have you been diagnosed with or treated for any mental, emotional, or nervous disorders • Appropriate way to screen? • Focus on BEHAVIOR and not diagnosis • Questions should focus instead on conduct or behavior that impairs an applicant's ability to practice law in a competent ethical and professional manner • What you're doing with the information is important - want to see people succeed so questions should be asked about what the board can do to help.
Elements of privilege
Communications are protected from disclosure discovery if: • 1) the asserted holder of the privilege is or sought to become a client • 2) the person to whom the communication was made is o (a) a member of bar of a court or his or her subordinate and o (b) in connection with this communication is acting as a lawyer • (3) the communication relates to a fact of which the attorney was informed o (a) by a client o (b) without the presence of strangers o (c) for the purpose of securing primarily • (i) an opinion of law • (ii) legal services • (iii) assistance in some legal proceeding • (4) not for the purpose of committing a crime or tort • (5) the privilege has been claimed and not waived by the client
Confidentiality
Confidentiality: Rule 1.6 - a lawyer shall not relveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to ... • Relation between lawyer and client/guardian and ward or between spouses with regard to the trust that is placed in the one by the other • 3rd Restatement of Agency - an agency has a duty not to use of communicate confidential information of the principal for the agent's own purposes or those of a third party
Five C's: Fiduciary Duties of Lawyers
Control - client has control over decisions Communication - client must be kept updated on what happened in the case (Rule 1.4) Competence - adequate research on how to handle a certain type of case Confidentiality - duty to not disclose what they provide to us and not to use that information to benefit ourselves or third parties (Rule 1.6) Conflict of interest - avoid or resolve (Rule 1.7)
Control Group Test
Control Group Test - attorney's notes are protected by the qualified work product immunity. Holds that the privilege may be invoked only by those employees who communicate with counsel and are in a position to control or take a substantial role in the determination of the course of action a corporation may take based on the legal advice received o Some courts believe this approach frustrates the purpose of the privilege by being too narrow
Three Tests for Work Product Privilege in a Corporate Setting
Control Group Test, Subject Matter Test, Upjohn Test
Beverly Hills Concepts v. Schatz and Schatz, Ribicoff and Kotkin (1998)
Distinguishing Claims: • How can the court find the junior associate not liable for breach of fiduciary duty while she is found liable of malpractice? o Trust and loyalty are fiduciary duties and BHC did not put their trust in the junior associate they put it in the partners/big guns who approached them • While an attorney/client relationship establishes a fiduciary duty for the attorney, instances of professional negligence do not automatically create a cause of action for breach of that duty • Court distinguished fiduciary duty and duty of care o Professional negligence implicates duty of care o Breach of fiduciary duty implicates a duty of loyalty and honesty • BHC loyalty was not to her.
Criminal Conduct & Admission to the Bar
Generally: No jurisdiction makes every felony a conclusive basis fore excluding a bar applicant for all time • In re Manville - admission of 3 applicants convicted of manslaughter, attempted armed robbery and sale of narcotics • In re Pollin - admission of applicant convicted of cocaine conspiracy What felonies are hardest to overcome in bar admission? • Felonies involving dishonesty or breach of trust are nearly impossible to overcome in bar admission - ex. Fraud New York: Felony Disbarment Rule • A lawyer who is convicted of a felony after being admitted to the bar will lose their license
In Re Application of Griffen
Had a lot of financial issues. Concern if you cant handle your own finances you might mishandle client's funds
Minor vs. Sweet
Malpractice for transactional work. argued that but-for test should not apply because there are no witnesses, but court held no, same but-for standard should apply
Definition of Work Product
Mental impressions of counsel; other work done on behalf of client in preparation for litigation (Cali law protects all work for a client, including in transactions; federal protection extends only to work done in anticipation of litigation)
Authority Model Rules
Model Rules on Point o Rule 1.2: Scope of Representation and Allocation of Authority between client and lawyer o Rule 1.4: Communication
Definition of privilege
Must be part of the communication, the communication has to be related to legal advice, and that person has to be a lawyer.
Lack of Candor & Admission to the Bar
Strigler v. Board of Bar Examiners • Applicant's failure to answer all the board's questions candidly, both on the application and at a hearing is a powerful indication that the applicant lacks the good character required for admission to the bar Friedman v. Conn. Bar Examining Comm. • law school discipline committee found that applicant cheated on a closed book exam, dean later reversed the sanction due to delays, but applicant made it sound like he was found innocent.
Duty of Care
Not a fiduciary duty • Act with knowledge and skill • If breached, it is malpractice.
Spheres of Authority: Sphere 1
Sphere #1: clients retain sole authority - cannot be overridden by lawyer • Clients have sole authority to make decisions concerning outcome of the representation • Clients may authorize their lawyers to make a particular decision within this sphere but the ultimate authority of clients to decide cannot be completely surrendered to their lawyers o Whether and when to settle o Whether and when to appeal o How to plead in a criminal case o Whether to waive a jury trial in a criminal case o Whether to testify in a criminal case • Substance
Work Product: End Product Standard
Other states have adopted a more lawyer friendly end product standard under which clients are entitled only to documents that they specifically hired their attorneys to produce, including court documents and client memoranda
Privilege
Privilege: client's right to refuse to disclose and to prevent any other person from disclosing confidential communications • Comes from rules of evidence or common law • When asserting privilege it has to be in an evidentiary setting aka compelling testimony
Spheres of Authority: Sphere 2
Sphere #2: lawyers retain sole authority to make certain decisions - cannot be overridden by client • Bounds of law - lawyers have sole authority and must refuse to perform counsel, or assist a client's unlawful act • Lawyer may take actions in tribunals that the lawyer reasonably believes are required by law, despite client's wishes • Procedural
Spheres of Authority: Sphere 3
Sphere #3: client and lawyer decision-making authority overlap • Includes all decisions not reserves solely to clients or lawyers • Duty of communication: lawyer must o Reasonably consult with the client about the means to be used to achieve the client's goals o Keep the client reasonably informed about the status of the matter o Promptly respond to client requests for information o Provide enough information to enable the client to make informed decisions regarding representation - fiduciary duty of control • Once there has been a reasonable consultation, lawyers have implied authorization to take lawful measures to advance client objectives
US v. 7109 West Grand Ave.
RULE: "[t]he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent's deeds." The rule is that all of the attorney's misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. You can recover from the lawyer but you can't re-litigate the case (for negligence - for malpractice you can re-litigate) TAKE AWAY - chose your attorney wisely
Rules discussing third parties
Rule 4.3 - dealing with unrepresented persons Rule 4.4 - Respect for the right of third persons
May a prosecutor propose a plea agreement that requires a waiver of the defendant's or potential defendant's right to pursue a claim of IAC relating to the matter that is the subject of the plea agreement?
Rule doesn't explicitly apply to plea agreement situation but much like an IAC claim, the underlying basis for a malpractice claim is the attorney's own professional conduct • If a lawyer ethically cannot advise a client about a malpractice limitation then a lawyer ethically cannot advise a client about an IAC waiver • Rule 8.4 → comes into play almost every time • In making such a proposal, a prosecutor is assisting or inducing another lawyer to violate the Rules of Professional Conduct
For exclusion From the Bar There Must Be....
Some nexus between character/fitness trait and application to legal profession
Work Product: Client Oriented Position
Some states have adopted a fully client-oriented position, adopting an entire file standard under which clients are presumptively entitled to any document their attorneys created during the court of the representation
Subject Matter Test
Subject Matter Test - an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation's attorney is privileged where the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney's advice is sought by the corporation and dealt with in the communication is the performance by the employee of the duties of his employment o Communication is made for the purpose of giving or receiving legal advice o Employee who is communicating with the attorney is doing so at the direction of a superior o Direction is given by the superior to obtain legal advice for the corporation o Subject matter of the communication is within the scope of the employee's duties, and o Communication is not disseminated beyond those persons who need to know
Type 1 Lawyering
Type 1 Lawyer: • Recite the law or relevant order and then take the position that they have exhausted the legal aspects of the question and the remaining aspects are therefore up to the client • Common among junior lawyers and very risk averse lawyers
Type 2 Lawyering
Type 2 Lawyer: • Take the legal situation into account and then actually give advice on what to do • Don't advise them on the order says x or the law says y but rather I think x is the best/fastest • These lawyers do far better in the real world than type 1 lawyers because they actually help their clients
Upjohn Test
Upjohn Test- rejected the control group test because it frustrates the purpose of the attorney-client privilege by discouraging the communication of relevant information by employees of the client corporation to attorneys seeking to render legal advice to the client o Adopted a version of the subject matter test o Communications at issue in Upjohn were protected because • They were made to in-house counsel at the direction of corporate superiors • Concerned matters within the scope of the employees' in house duties • Information was not available from upper level management, and • Employees were aware that they were being questioned in order for the corporation to receive legal advice
Rules Implicated in US v. Sarantos
o Rule 1.2(d) - shall not counsel a client to engage or assist a client in conduct that a lawyer knows is criminal or fraudulent... • Doesn't preclude a lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct o Rule 4.1 - What happens when the client's course of action has already begun and is continuing? • Lawyer is required to avoid assisting the client • Withdraw from representation • Withdrawing alone might not be enough and it might be necessary to give notice of withdrawal and to disaffirm any opinion, document, affirmation of the like o Rule 1.4(a)(5) - if a lawyer comes to know or reasonably should know that a client expects assistance not permitted
Plea Agreements: Rules
o Rule 1.7(a)(2) o Rule 3.2 o Rule 3.8(b) o Rule 1.8(h)(1) • Rule 8.4 → comes into play almost every time
Two basic functions lawyers must perform
• Research applicable law • Investigate relevant facts
Breach of Fiduciary Duty Analysis
• (1) Defendant occupied a position of trust/fiduciary relationship • (2) Defendant breached that duty to benefit personally • Civil Recovery: o damages o may be possible to recover what was paid to the attorney by the principal o may recover profits earned by fiduciary even if the claimant didn't suffer actual loss
Elements of Attorney-Client Privilege
• 1) Where legal advice of any kind is sought • 2) From a professional legal advisor in his capacity as such o Could be a paralegal, student intern • 3) Communications relating to that purpose (for which they are seeking representation) • 4) Made in confidence - if they say it to anyone else, including any third person, you lose privilege • 5) Made by the client o if a non-client gives information it is not privileged, although it may be confidential • 6) Are at the client's insistence permanently protected • 7) From disclosure by himself or by the legal advisor • 8) Except if the protection be waived
In Re Grievance Proceeding
• Agreement signed by client delegated to attorney complete discretion with respect to any settlement offers and authorized counsel to reject settlement offers in counsel's sole discretion for any reason whatsoever • RULE → Can't contract out of the spheres of authority in a retainer agreement, the comments to the rules also come as part of the rules
Advertising and Solicitation: Policy
• All these rules are about protecting the public • Want to be clear about where you are licensed and who you are serving - false or misleading communication
Nichols v. Keller
• An attorney who agrees to provide limited representation with respect to a particular cause of action nevertheless owes a duty to the client to provide information about other possible causes of action. • At least need to warn Nichols that they aren't covering or responsible for everything - can limit the retention to compensation claim if the client is cautioned that there might be other remedies that the attorney will not investigate and that he should consult other counsel • Rule 2.1 - Advisor
In re Prager
• Applied for admission in Massachusetts in 1996 • While a grad student at Harvard, smoked marijuana regularly • Organized and led marijuana smuggling operations via South America • Testified that he stopped smoking and smuggling in 1981 • He fled the U.S. and lived abroad as a fugitive • Came back and received suspended sentence - did community service by treating AIDS patients out of his home • He admitted to, dealt with the charges, made the community a better place BUT the bar still would not admit him because it would reflect poorly on the integrity of the bar.
State v. Cheatham
• Attorney dressed like Thomas Jefferson for his disciplinary case • Examples of IAC: o Hawver disclosed to jurors that Cheatham had an earlier voluntary manslaughter conviction that the prosecutor had agreed not to introduce - there was no tactical advantage for defense to do this o He also called defendant a murdering dope dealer
In Re Dennis Hawver
• Attorney from Cheatham was disciplined • Lost his license to practice law for violating rules of professional conduct • Supreme Court of Kansas reversed Cheatham's murder convictions and ordered a new trial due to IAC
Confidentiality Model Rules
• Rule 1.6 • Rule 1.13 • Rule 3.3
Togstad v. Vesely, Otto, Miller & Keefe
• Brain aneurism medical malpractice case • Battle of experts • Case within a case - First had to prove that the hospital was actually negligent and that a case did exist; But for Miller's negligence, plaintiffs would have been successful in the prosecution of a legal action against Dr. Blake • Lesson: • To save your research notes as an attorney • Why? o If he could have shown he did the research he would probably not have been on the hook for malpractice • Mere error of judgment does not constitute malpractice o Court considers what would an ordinary prudent attorney do before rendering legal advice in a case of this nature? • Flip-side: a lawyer who failed to done necessary research cannot claim exercise of reasonable judgment as a defense to a malpractice claim
UPL Committee v. Parsons Technology
• Can creation and sales of interactive software to help people with legal problems constitute unauthorized practice of law? • In Texas, the sale of a computer software program that provides blank legal documents for the user with instructions on how to complete them, without clearly disclaiming that the user should consult with an attorney, constitutes the unauthorized practice of law.
Neuder v. Battelle Pacific Northwest National Laboratory
• Client claiming wrongful termination, there is an attorney on the board that reviews termination for the company • The mere fact that in-house counsel is present at a meeting does not shield otherwise unprivileged communications from disclosure • Appellate court says that the primary function of the meetings was to make business decisions not to obtain legal advice, so not privileged • Non privileged - the communication must relate to the business or transaction for which counsel has be consulted or retained
Lefcourt v. US
• Client's identity is not privileged information. It is confidential but not privileged if compelled to testify. Fee information is also not privileged • Legal advice exception - holds that client identifying information is privileged where there is a strong probability that disclosure would implicate the client in the very criminal activity for which legal advice was sought. o To the extent that the legal advice exception exists in any jurisdiction it plainly is not recognized as a special circumstance in this circuit o Concludes that Lefcourt had no reasonable basis for failing to provide the information required by statute under the facts presented
Winecheck v. Nagleberg
• Commercial driver's license scam case. Second attorney promised a better deal than first attorney, took a lot of their money then said he couldn't help them. • Actual innocence rule: criminal defendant cannot successfully sue for malpractice unless can prove they were actually innocent of the crime. o Does not apply if you have a claim that can be established without regard to the quality of the representation, such as the person did no actual work on the case
Legal Malpractice: When Don't You Need Expert Testimony?
• Common knowledge exceptions • Breach of fiduciary duty i.e. if you steal client's money (must be a clear cut breach of fiduciary duty, if it's the duty of care might need an expert to come in and talk about what that is) • Missed filing deadlines or statues of limitations
Upjohn v. United States
• Company conducted an internal investigation - based on some information, sent questionnaires to relevant management employees to determine how bad the problem was • Attorney-client privilege protects the communications (questionnaires and memos) in this case from compelled disclosure • Work product doctrine applies • Is that absolute? o Not if they show substantial need and harm o The IRS would have to present a strong showing of necessity to compel discovery of work product. IRS could not do this because they could interview the employees themselves and collect the same information
Affirmative Defenses to malpractice
• Comparative fault • statute of limitations • comparative negligence Generally no punitive damages in legal malpractice unless you can show lawyer acted with intent, fraud, etc.
Generally Known
• Confidential client information does not include information that is generally known - such information may be employed by a lawyer who possesses it in permissibly representing other clients and in other contexts where there is a specific justification for doing so • Divulgence to facilitate law practices - understanding that to maintain practice there must be certain information divulged • Divulgence for purpose of professional assistance and development: historical research - providing professional assistance to other lawyers
Welch v. Erskine and Tulley
• Confidentiality case, but not disclosure case. Use of confidential information from former client (rule 1.9). talks about using the rules of professional conduct to establish conduct for liability • Rule 1.9: Duties to former clients • RULE → had to get consent from the client before using confidential information ex. client lists, fee schedules, collection methods UNLESS ordinary, well known business practices.
In Re Converse
• Converse applying for Nebraska bar, was denied for multiple reasons, including sending a nasty letter to the dean in law school, sending letters to newspapers, investigating salaries of professors and posting a list of that, put a naked picture of a girl in his carrel, etc. • Standard of character and fitness • The burden of proof for admission lies on the applicant and for discipline the burden is on the State • What issues are most relevant? o Is this an isolated issue? o Has the individual admitted their wrongdoing? o Has the extent of the wrongdoing been fully disclosed? o Is there some level of remorse?
Core of Privilege
• Core element of any privilege = confidential nature of the communication • Where reasonable person thinks it is confidential - aka if an office is bugged that doesn't mean there is no privilege • Attorney client privilege is waived when a privilege holder, without coercion and with knowledge of his right or privilege, makes disclosure of any part of the privileged matter or consents to such a disclosure being made by anyone else • Who holds the privilege? - THE CLIENT
Advertising and Solicitation: Rules
• Rule 7.1 - communications concerning a lawyer's services • Rule 7.2 - advertising • Rule 7.3 - solicitation of clients o Cannot be for a pecuniary gain
In Re James R. Keller
• Rule 7.1(d) - cannot contain representation of implication about quality of legal services • Advertisement implies that the client represented by respondent's law firm will achieve favorable results based solely upon respondent's reputation with insurance companies
Reliance
• Depends on contextual factors • Statements made that implicate objective means of assessment are more likely to be treated as factual statements than those that do not o Ex. The temperature outside is 72 degrees is a factual statement because there is a social convention for measuring temperature o It is a nice day invokes no such conventions or means and will be treated as subjective, and thus a statement of opinion • The difference between actionable and non-actionable statements tracks the fact/opinion distinction imperfectly • In some cases a statement of opinion is actionable because it implies both facts justifying the opinion as reasonable and states overtly the fact that the person giving the opinion does in fact hold the opinion • An opinion letter is an opinion but it will be treated as actionable because it will imply both diligence necessary to render the opinion and that the opinion is sincerely held
Matter of Kevin L. Scionti
• Factors used in determining sanctions o Duty violated o Lawyer's mental state o Actual and potential injury caused by the misconduct o Mitigating factors • Dissent: o Expression of regret
Retainer Agreement: Joint Representation
• Fee structure • Duty to communicate • Scope of representation • Confidentiality o Waiver of confidentiality between the 2 clients - keep things confidential from others but not from the person in the joint representation • If interests become adverse or if a conflict develops or unfolds, you have the right to decide how to handle it.
Retainer Agreement: Single Client
• Fee structure • Duty of communication - client's behalf, client's address, phone number o If no response to attorney's communication within X number of days attorney retains right to refuse representation • Scope of representation - what you agree to represent the client for • Confidentiality - define confidentiality, who lawyer will share information with o Put any kind of exceptions including lawyer self defense
In re Goldman
• Florida Bar- originally found to be qualified, but indictments from Maryland before formal admission • Indictments were dismissed • Florida Bar said they had a different standard than the courts and can look at indictments that were dismissed • Allowed to re-examine character and fitness - looking into basis for dismissal of indictments
In Re Matthew Hale
• Guy was a white supremacist and denied admission to the bar. • Said he was denied admission based on things that were allowed by his first amendment right • Court emphasized not about his free speech right but about his character and fitness • Hale's publically displayed views are diametrically opposed to the letter and spirit of the rules of professional conduct • Court said that in regulating conduct of attorneys certain fundamental truths of equality and non-discrimination must be preferred over the values found in the first amendment
Falsity on Bar Application
• If discovered after bar admission, lawyer can be censured, suspended or disbarred Carter v. Charos - 90 day suspension • Asked if he had ever been charged with, arrested, or indicted or questioned regarding violations of any law, answered no. turns out he had many instances.
Work Product Waiver
• If the work product is placed at issue • If the work product is disclosed to a testifying expert • Limited disclosure of work product material doesn't waive the work product protection unless the disclosure is likely to reveal work product material to an opponent • This is why determination of an inadvertent disclosure is necessary
Ways to Lose Privilege
• In conversations in which non-client employees are present • When assertedly privileged information is communicated beyond the small group of individuals who need to know • When the lawyer interviews a third party to assist in client representation • If it is during litigation it is possible that attorney work-product privilege would apply • In a purely transactional matter, the attorney can be forced to testify about these conversations
A v. B, 158 N.J. 51 (1999)
• Law firm represented husband and wife in will drafted - husband had an extramarital affair and the baby mama hired the same law firm to represent her in the paternity action • Clerical error missed the conflict. Hill Wallack discovered the conflict and withdrew from representing the mother of the illegitimate child. BUT the question was whether the firm tells the wife • Rule 1.6 - supports disclosure to the wife of a fraudulent act and firm did not learn of illegitimate child through any confidential disclosure. Husband's expectation of nondisclosure of the information isn't as great as if he had told it to the attorneys • Rule 1.6 at most mandates he tell the wife but at least allows him to.
Required Standard of Care
• Lawyer is obligated to exercise that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction (Cook, Flanagan & Berst v. Clausing (Wash. 1968)) • Attorney's subjective good faith is no defense if he failed to act as a reasonably prudent lawyer would have acted under the circumstances (Cosgrove v. Grimes (Tex. 1989)) • Can be special to different states → requiring degree of skill, prudence and diligence of Georgia lawyers (Kellos) • Heightened Standard: o If a lawyer further specializes within the profession, he must meet the standards of knowledge and skill of such specialists (Neel v. Msgana, Olney, Levy, Cathcart & Gelfand)
US v. Sarantos
• Marriage sham case • It was clear that he was informed of the sham nature of the marriages o Some newlyweds required an interpreter because they shared no common language o Divorce papers were executed simultaneously with immigration papers o Sarantos was told the wife was being paid a fee o Was at lease indirectly informed that the parties were not living together o Several of the couples purported to be living in buildings owned or managed by other clients of Sarantos • Defendant knew the objective of the conspiracy was to achieve permanent residency for co-conspirator, even though he may not have been familiar with every step that would be taken by his co-conspirators to achieve the conspiracy's objective
Muniz v. Smith
• Sleeping attorney case. Second prong of Strickland was not met • He satisfied Strickland's first prong but failed to carry his burden with respect to the prejudice prong • The harmful evidence admitted after cross was admissible anyway because of misguided responses by Muniz himself- would not have lead to reasonably different outcome
Statements: actionable v. non-actionable
• May take the form of positional bargaining o (1) Each party opens with her position on issue o (2) Parties then bargain from separate opening positions o (3) Parties agree on one position • I.e., haggling over a price • During negotiation, parties may engage in deliberate deception about the facts, their authority, or their intentions • To protect against this, seek verification of the other side's claims • Ask for further clarification of claim, or to put the claim in writing • Avoid looking like you're calling the other party a liar • Statement that will be treated as a statement of a position will NOT support a fraud claim • Statement that will be treated as one of fact could possibly support a fraud claim
Hickman v. Taylor
• Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel's written statements, private memoranda, and personal recollections. • To compel documents that may be privileged by containing attorney work product, the moving party must show: o (1) That it has no other method of obtaining the information, and • Ex. Witness dies o (2) That denial of his motion to compel will cause harm to their case o Strong policy interest: allow lawyers to work with a degree of privacy • The work can't be ordinary course of business - has to be prepared with an eye toward litigation
Perez v. Kirk & Carrigan (1991)
• Perez drives a truck for Valley Coca Cola, crashes his truck into a school bus full of children and kills them after his brakes fail. Attorneys for coca cola come to interview him and he reveals a lot of inculpatory information that relieved liability from coke and placed it on himself. Claimed the attorneys told him they represented him as well so it would be confidential. • Attorneys disclose all the information to DA so that coke would not be liable. • Court holds that attorney client privilege was created, because Perez cooperated with the lawyers in giving his statement, even though he did not offer and was not asked to pay attorney fees, the actions between the parties were sufficient to imply the creation of an attorney-client relationship at the time he gave his statement to K&C • BUT → Cannot assert privilege claim because other people were in the room during the exchange, but confidentiality can still exist IF Perez has the expectation that this would be confidential - did not expect that anyone in the room would go to the DA
In Re Pressly (1993)
• Pressly represented a woman in a divorce proceeding and told husband's attorney about wife's suspicions of abuse even though she asked him not to, asked attorney asked husband's attorney not to tell husband (his client) • The opposing attorney asked questions so the attorney told him. • Mandated reporting Rule 1.6(b)
Confidentiality and Privilege Related
• Privileged communication: Fact o May be discoverable from the client o Not from the lawyer unless the lawyer has a non-privileged source of information o Then - only to the extent of that information or knowledge • Privileged communication is not discoverable from either lawyer or client without client consent if just privileged communication, not a fact
Examples of fiduciary obligation without attorney client relationship
• Prospective client who has not yet signed retainer agreement • Attorneys of co-defendants cannot use information to detriment of one of the co-defendants (who attorney didn't represent) in representation of another client • Attorney hired by insurer to investigate a claim where the insured cooperates cannot later represent a third party against the insured (or keep representing the insurer when a conflict develops)
US v. Kovel
• Question - Under what circumstances the attorney-client privilege may include a communication to a non-lawyer by the lawyer's client • Two conflicting forces - privilege to seek out specialized professionals but also privilege • Interpreter analogy - attorneys use them for clients who do not speak English, third party present, but specialized knowledge that the lawyer would need to adequately serve the client • Court also hints that the non-lawyer must be "necessary or at least highly useful" for the provision of such services • What facts should the district judge establish on remand? o How the client came to be talking to IRS agent rather than attorney o How that conversation related to attorney's representation o If client met with IRS agent prior to meeting with lawyer, unlikely that privilege would attach.
Assumption of Duties: Barton v. US District Court
• Question - whether or not you can be part of a class action by filling out questionnaire • More important is what the client's thought or reasonably believed and not what the lawyer's intended • What is most important? o Most important what the client's thought o Ambiguity construed against the law firm o The duty of confidentiality did attach through the initial online contact between the firm and prospective clients o The attorney-client priv. then did attach because it was confidential
Blanton v. Womancare
• RULE → Client is bound by the agreement only if the attorney had either implied authority or apparently authority to enter into the agreement on her behalf • An attorney, merely by virtue of his employment as such, has no apparent authority to bind his client to an agreement for arbitration • When a client engages an attorney to litigate in a judicial forum, the client has a right to be consulted and his consent obtained, before the dispute is shifted to another, and quite different, forum where the transfer entails the sort of substantial consequences present here. • NOTE: Hiring a lawyer creates BOTH apparent and implied authority o In part, apparent authority - the authority to do that which attorneys are normally authorized to do in the course of litigation manifested by the client's act of hiring an attorney • But can't just settle an agreement on client's behalf. o In part, actual authority implied in law - such as tactical decisions like whether to call a particular witness the attorney's authority is implied as law as a necessary incident to the function the attorney I engaged to perform • Can't ratify what attorney did -even if it was initially out of the scope of an attorney's apparent authority, if the client manifests assent after it's still fine.
Louis Fennel v. TLB Kent
• RULE → apparent authority is created only by the representations of the principal to the third party, and explicitly rejects the notion that an agent can create apparent authority by his own actions or representation • Fennel never communicated to opposing counsel that his lawyer had the authority to settle the case.
Rose v. Modica
• Res adjudicata, such similar elements to IAC and legal malpractice that you can't sue for both • When a D litigates an IAC claim in the criminal context and does not prevail, a defendant is collaterally estopped from raising the same issues again in a civil suit.
Arko v. Colorado: Type 1 vs. Type 2 Decisions
• Type 1 = implicates client's fundamental rights traditionally belonged to the clients • Type 2 = tactical decisions that usually belong to the attorney o Because the client maintains fundamental trial rights decision to request shorter sentence was tactical and belonged to the attorney. o Because the D retains fundament trial rights, the decision to request a lesser offense instruction is strategic and tactical in nature, and is therefore reserved for defense counsel o NOT analogous to a plea bargain which is a client's fundamental right
Type I Work Product
• Type I: Opinion work product: derived from attorney's thoughts or the attorney's interpretation of facts o Consists of the attorney's mental impressions, conclusions, opinions or theories concerning the litigation o Derivative or interpretive o Ex. Notes of witness interviews o Eligible for near-absolute work product privilege
Type II Work Product
• Type II: Fact Work Product: material that is neither derived from attorney's thoughts, nor reflects the attorney's interpretation o Factual information that pertains to the litigation and is prepared or gathered in connection with it o Ex. Evidentiary o Eligible for qualified work product privilege
Westinghouse Electric v. Kerr McGee
• What is the key in determining whether an attorney client relationship exists o The professional relationship for purposes of the privilege for attorney client communications hinges on the client's belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice • Court said that the effect of Kirkland being a big, multi-city firm lead individuals to be more willing to give confidential information - just because it's a big law firm doesn't mean it can be treated all separately
Liability to Third Parties: Meighan v. Shore
• When a husband and wife consult an attorney about a personal injury action against a third party on account of personal injury to one of them, and the other spouse has a potential claim for loss of consortium of which the attorney is or ought to be aware, the attorney has a duty to inform that spouse of the cause of action o Professional liability is not dependent upon privity of contract but the presence or absence of a client's intent that the plaintiff benefit or rely upon the attorney's services is particularly significant in the determination of duty. Intended reliance may be express or implicit, obvious or subtle o Community property - the consortium tort is so closely interwoven with the personal injury action that P and her husband were in privity with respect to it.
Standard to Settle/Plead
• When a lawyer does recommend a settlement, he risks liability if he does not do the legal and factual research necessary to determine its adequacy (Mutuelles Unies) • Meyer v. Wagner o Client brought malpractice claim against divorce lawyer o An attorney's settlement recommendation will not be malpractice simply because another attorney, or even many other attorneys, would not have made the same recommendation under the circumstances
Minnesota v. Rhodes
• Wife goes overboard on a boat and husband fails to tell anyone for 2 weeks, attorney testified in the case that he met with the defendant and his wife about a possible divorce and that he calculated the amount of child support for them and told defendant he would have to pay a lot of money. Prosecutor seeks to enter this as motive and needs attorney to testify. • Normally privilege would attach but since wife was present and was not a client during conversations then privilege did not attach. • In a three way conversation no privilege attaches if one of the parties is not a client.
Wood's Case, 137 N.H. 698 (1993)
• Wood's references to the fact that representatives explored another site and his firm refused to represent them because of his opposition to the project were improper o The statement was false, making it a 4.1(a) issue (NOT a 1.9(b) issue) • However, discussion of traffic, lighting, wildlife, employment and taxes did not breach any duties because they are generic well known consequences of development and not confidential information
Tante v. Herring
• You can't claim malpractice if you win the case • But lawyer still breached other fiduciary duties