Duty of ConfidentialityAttorney-Client Privilege

Broader Narrower (not everything is privileged)

Cant reveal anything related to the representation of a client without consentOnly covers communications pertaining to legal services (not facts! general advice/business advice not privileged)

Shield all information regardless of the source (client, agent, third party) Shields information obtained from the client or his/her agent(s) (Kovel standard of third parties (translators, paralegals, assistants, interns, investigators, etc.)

Confidentiality includes ALL disclosures that could reasonably lead to discoveryOnly pertains to legal services (not subjects like business tactics or political consequences)

Duty can attack before a lawyer/client relationship is formed; (even if none was formed)Privilege does not protect what a lawyer visually sees/observes; physical acts are NOT privileged

The privilege belongs to the client; the lawyer has the duty to invoke the privilege

Client identity is confidential (NOT privileged)To hire you: not communication; its a commercial transaction.

was your client here 15 minutes ago? = PRIVILEGED! When asked when testifying in a deposition or in a grand jury? = only confidential; not privileged.

Waiver: privilege is expressly waived as to information communicated by a client to a non-privileged person. Example 1: attorney/client publicly revealed a fact = privilege is waived! Example 2: put something at issue my lawyer told me X = privilege is waived! (subject matter waiver)

If a client seeks assistance with a crime or fraud = NO PRIVILEGE (1.2(d)) The act of asking whether a certain act is prohibited = PRIVILEGED! If a client asks advice about a PRIOR criminal act = privileged! As long as the past act is really PAST!

EXCEPTIONS to DUTY OF CONFIDENTIALITYRule 1.6 Confidentiality of Information: 1.6 (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:Past physical harm to others NO exception permits disclosure

Threatened FUTURE physical harm to others MAY (but not required) reveal info when reasonably believes is necessary to prevent a future crime likely to result in reasonably certain death or substantial bodily harm (b)(1) to prevent reasonably certain death or substantial bodily harm;(covers suicide, harm to others by client or 3rd parties)

Prevent FUTURE fraud or financial crimes MAY reveal info if it will result with reasonable certainty in substantial injury to someones financial interests AND the client used/using lawyers services to commit the crime or fraud

(b) (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;

Mitigate / rectify PAST fraud MAY reveal info if it will prevent, mitigate or rectify PAST fraud that has resulted or is reasonably certain to result in substantial financial injury IF the client used lawyers services to commit the crime or fraud -- disclosure required by 4.1(b) if those conditions are met and the revelation would prevent/mitigate substantial financial loss. (b) (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;

The Ross exampleLawyer needs to obtain advice from an ethics lawyer to secure legal advice about the lawyers compliance w/ the rules! (b) (4) to secure legal advice about the lawyer's compliance with these Rules;

DefenseLawyer needs to prove work done to collect a fee or defend against misconduct charge if: sued for malpractice defend a disciplinary action a client refuses to pay**cannot be a means to extort/blackmail the client from bringing a malpractice lawsuit (b) (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client

CompelledIf compelled by LAW, COURT ORDER, etc. (lawyers must follow the law!) if a client pays in cash, a lawyer must reveal that information in a tax form (b)(6) to comply with other law or a court order;

OTHER DUTIES THAT ARE SUBJECT TO THE DUTY OF CONFIDENTIALITY: Other duties impost requirements on lawyers ONLY when the duty does not offend the duty of confidentiality typically, it will require a lawyer to comply with it subject to the duty of confidentiality or unless the information is subject to 1.6 (the confidentiality rule)Rule 8.3Requires a lawyer to report certain misconduct of other lawyers, but not If such reporting would require of information otherwise protected by 1.6

Rule 1.9(c)(2)Defines the nature of conflict of interests with former clients and restrict the use of info from the former clients representation except as 1.6 would permit or require.

Rule 1.13 comment 5Sets out the special duties and roles lawyers whose clients are organizations. Comment indicates that rule 1.13 does not limit or expand the lawyers responsibilities under 1.6

Rule 2.3(c)Permits lawyers to prepare materials on a clients behalf for the evolution by third parties. In doing so, [except as authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by 1.6

Rule 4.1 Requires lawyers to disclose certain facts to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by 1.6

Rule 1.4 Communication(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;The duty to communicate is measured by the rule of reason/reasonableness.

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;reasonably consult = talk to the client about the objectives of the client: get a divorce, get out of jail, etc.you do not have to talk to keep up appearancesreasonably is determined in a case-by-case basis.

(3) keep the client reasonably informed about the status of the matter;(3) reasonably informed about the status of the matter almost unheard of for a lawyer violating (1)(2) or (3)

(4) promptly comply with reasonable requests for information;Rule 1.4 (4) promptly comply with request for information (one of the few temporal time requirements) Client calls you call him/her back promptly; client emails you call him/her back promptly

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.(4) you only have to ask reasonable questions (see page 320) do not answer questions that ask for advice on how to commit crimes or fraud

1.4(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.(b) = the rule that consumes everything (everything in (a) and more)

1.4 is in conflict with 8.4(a) [misconduct] (a)(1)-(5)(a) = tangible information (b) is the catch all that lets lawyers know that clients need to know all the information (even non-tangible) ex. If you're going dying and you wont be able to serve them in 6 months if youre a sole practitioner and youre dying of cancer, you have to make sure theres someone to replace you.

Lying versus deception: Is there a moral distinction? A half truth is no truth at all Truth versus truthfulness If you are diligent and honest, but wrong, you are being truthful; but a half truth is no truth at all

Other Honesty and Communication Rules

1) Rule 1.4: client's informed consent

2) Rule 8.4: deceit and misrepresentations

3) Rule 3.3: candor to a tribunal

4) Rule 4.1: truthfulness in statements to others

5) Civil liability for dishonesty to clients

Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer:(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.The client decides the objectives // The lawyer decides the meansIn civil cases: client decides whether or not to settle In criminal cases: client decides whether to plead guilty to waive jury trial to testify

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.** This is a very important rule which is often overlooked: Almost all limitations are reasonable An unreasonable limitations example: Ill represent you if you promise never to sue me

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.timing is everything! When a lawyer knows a client will use services to perpetrate a crime/fraud BEFORE representation has begun must reject representation. // When the lawyer learns the same DURING representation must withdraw from the representation ** watch for timing of lawyers knowledge of client misconduct! **

Rule 1.2 does not define "objectives". But Comment 2 to Rule 1.2 notes that "clients normally defer to the special knowledge and skill of their lawyer," and lawyers usually deer to clients with respect to "questions such as the expense to be incurred and concern for third persons who might be adversely affected." Ross said this comment doesnt really sound like this relates to an objective, but not most important thing to clients most of the time Lawyers usually defer to clients on matters such as expenses and concern for third persons who might be adversely affected Example of third parties affected = battered wife doesnt want her children involved in a lawsuit against her husband. Restatement 21, comment e: A lawyer may take "any lawful measure within the scope of representation that is reasonably calculated to advance a client's objective." Unless a lawyer and a client have agreed otherwise, the lawyer, not the client, should make decisions that "involve technical legal and strategic considerations difficult for a client to assess." The lawyer made decide whether: to move to dismiss a complaint; what discovery to pursue; to accommodate opposing counsel to object / waive objections to questions during hearing to decide what questions to ask witnesses.

Rule 1.14 Clients with Diminished Capacity: (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.= Maintain normal lawyer-client relations

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.= Acknowledges that in some situations a lawyer needs flexibility to assume a more paternalistic role to protect the client from some harm. A lawyer may ask a court to appoint a 3rd party who would make some legal decisions on behalf of the client.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

When a lawyer represents a client whose capacity to make decisions regarding the representation is diminished, the lawyer must attempt to maintain an ordinary lawyer-client relationship the extent possible.In seeking a protective action for a client, a lawyer may reveal confidential information to the extent reasonably necessary to protect the clients interests

Ross says this is one of the best of the model rules Important Comments to Rule 1.14: Comment 2: a lawyer must treat the client with respect and maintain communication Comment 3: when family members are involved, look to client for decisions, not to the family members, unless protective action under Rule 1.14(b) is necessary Comment 6 : In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

Rule 1.16 Declining or Terminating Representation: *** MANDATORY WITHDRAWL ***1.16(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law;(a)(1) violation of rule = conflict of interest, you must get off the case. If your continued assistance will result in a crime, you must withdraw out of the case. Anytime your involvement will violate the rules.

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or(a)(2) When your mental/physical abilities are such that you cant do your job, you must withdraw.

(3) the lawyer is discharged.(a)(3) lawyer is FIRED!

*** PERMISSIVE WITHDRAWL ***1.16(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:(1) withdrawal can be accomplished without material adverse effect on the interests of the client;(1) can withdraw for any reason so long as your withdrawal will not prejudice the client (only rule where it does matter if theres prejudice, any reason at all so long as it wont prejudice the client) (2)-(7) you can withdraw even if there is prejudice

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;(2) client is using your service for a crime or a fraud on going criminality withdraw!Interesting that 1.16(b)(2) says that lawyer may withdraw from representing a client in a course of action the lawyer reasonably believes is criminal or fraudulent, but doesnt say must.

(3) the client has used the lawyer's services to perpetrate a crime or fraud;(3) previously used my services for a crime or a fraud previously withdraw!

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;(4) the client insists on taking action that I consider repugnant or if the client is taking action that you fundamentally disagree with withdraw!i. the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; ii. This is a biggie, if you want to get out of a case, you can with that

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;(5) client doesnt pay withdraw! - allows you to quit if your client hasnt paid you - Note: NY rule says this only applies if the client has money

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or(6) continued representation will result in a financial burden on you withdraw! 1.16(b)(6) is a litte strange! The two clauses have nothing to do with one another.First, you cut a bad deal. Usually, in America, we dont let people get out of bad deals. Second, theyre a pain in your ass.

(7) other good cause for withdrawal exists.(7) other good cause can be something like your family vacation when trial is scheduled, client is obnoxious, client is difficult to deal with, you cant work with other lawyers (in a multi-defendant case)

When can you quit? 1) You only need permission to terminate relationship in litigation (from a judge)2) If you are working on a civil case, can basically quit at any time for these reasons Discharge = fired vs. Termination = fired or quit if youre infornt of a judge you must ask for court permission to withdraw, if the court doesnt give you permission, you must continue with the case. If you took money and havent used the full fee, you must give a refund. If youre owed money, you have a lean on the file. e. Terminating the Attorney-Client Relationship (pages 370-77) (3/3/15 part 2)

i. Attorney-client relationship typically terminates when a case is over or when the lawyer is discharged

ii. Duties to client at the conclusion of the relationship

1) Returning the client's file: Restatement section 46(2): on request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exists to refuse

a) Comment A to section 46: "document" includes a writing, drawing, chart, disc. Restatement 46 (2): must return the clients file unless there is a substantial ground for refusal (i.e., if a client owes moneyComment a to 46: documents includes a writing, drawing, chart, disc., Exception: what type of documents can be withheld? The only document is an internal document that relates to the firm management (pg. 371)

2) Client pays you, client owns your work product

iii. What type of documents may be withheld upon termination?

1) Law firm documents intended for internal review, such as documents discussion who in the firm should be assigned to a case, etc. (Restatement section 46, comment c)

2) Work performed but not yet paid for, if withholding such documents is not unreasonably harmful to the client (restatement section 43 comment c)

a) In NY, you can withhold documents, even if harmful, if they have not paid you

b) Can/should/must a lawyer turn over documents that are fraudulent? Yes

1.16(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.- even when a lawyer has good cause to withdraw, a court may order the lawyer to continue the representation- when litigation is pending, a lawyer must obtain the courts permission to withdraw from representation.

1.16(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.- although a client may discharge a lawyer without cause, the client will continue to have an obligation to pay fees to the lawyer that have already been earned.

f. Problems for Chapter 5

i. 5-4 The Package Bomber

1) Unabomber's goal was to embarrass the government even at the expense of his own life

2) Ethics question of whether lawyers were able to seek an insanity plea. 1.14 Technical defense = lose, If you put a mental defense = life-sentenceClient wants to put the technical defense (hed rather die) intersection of 1.2 who calls the shots This clients objectives is to have the story told to the world Sometimes strategy becomes the objective.

ii. 5-6 Tightening the Knot (p.359)

1) Representing man who chokes you with your tie, and says he will do it any time he wants

2) You know about flaw in his case that would get him released

a) Do you get him off, or let him rot in jail?

3) Rule 1.16

a) You may reveal that you are in danger of being killed

4) Law says you can stick with this person, can have someone appointed for them, disclose to the police, or you can withdraw

5) Do you have an obligation to tell them about the error in their legal papers?

a) Yes - Rule 1.4, keep them reasonably advised

6) What you can do depends on his mental capacity

1.16 you can move to withdraw you can tell the court that he needs medication, and dont relese him because he may hurt himself or someone else

a) Rules give you lots of options and empower you to do lots of thing

iii. 5-7: The Foster Child

1) Representing an 8 year old child who was removed from her parents in child abuse/neglect proceedings. Grace was removed from her mother's home after she was discovered to have welts on her arms and legs. She's in temporary foster care. Grace has a psychotic disorder for which she takes medication. Possible placements for Grace include: returning to mom; living with grandma...

a) Should you advocate for a particular placement for Grace at the upcoming hearing? If so, which placement Option to send her to the home where someone can trump her You have the power under 1.14 to take steps on her behalf (diminished capacity)Or alternatively, you have the option to move to withdraw because the client has an objective that you find repugnant