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Lawyers Professional Responsibility Outline

Lawyers Professional Responsibility Outline

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Published by Johnny Emm

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Published by: Johnny Emm on Feb 07, 2011
Copyright:Attribution Non-commercial


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Basic Rule:
confidential communications
between an
and a
if the
of the communication concerns the professional relationship between the attorney and client.
1.Includes prospective clients2.Includes agents of clients3.When the client is a corporation – 
Upjohn rule
authorized to practice law
in any state (if you are not yet amember of the bar, this doesn’t apply!)2.Attorney’s agent3.Must be in business capacity of the law practice (something to dowith the representation – not social)4.Client’s reasonable belief controls
1.Covers information passed from client to attorney and (sometimes)attorney to client or between the agents of either 2.Client’s identity and fee arrangement usually not covered3.Pre-existing documents and things usually not covered (thedocument was not a communication to your lawyer)
1.Must have been made by a means not intended to disclose tooutsiders2.Not affected by presence of third party where third party is presentto assist the AC relationship
b.Client is the Holder of the Privilege:
i.Waiver can be by failure to claim or by intentional disclosure of asignificant portionii.Lawyer has a duty to invoke the privilege on client’s belie
Privilege Outlives the AC relationship and even outlives the client
c.Upjohn v. United States , 449 U.S. 383 (1981) – page 209:i.
: Communications made by Upjohn employees to Upjohn counselwhile counsel was acting at the direction of corporate superiors who wereseeking legal advice is protected by ACP.ii.This is a lot broader than the former “control group test.”
iii.Why was the CGT inadequate?
1.In order for attorneys in a corporation to get enough information togive appropriate advice the information must be privileged.d.Fisher v. United States , 425 U.S. 391 (1976) – page 227: ACP and the 5
ACP - Held
: Documents given to the lawyer by the client were not privileged in the hands of the lawyers b/c they were not communications between the attorney and client they were pre-existing documents. If these1
items are not protected in the hands of the client, then they cannot beshielded by handing them over to an attorney.1.
Look at the documents themselves
 – see belowii.
Amendment – Held
: Fifth Amendment Compelled Self-Incrimination – The lawyer cannot invoke the 5
on behalf of the client b/c the
disclosure is being compelled,
not the client’s
disclosure.1.The 5
doesn’t apply when the lawyer is being asked to give upsomething on behalf of the client.2.The court holds that the documents are not protected b/c they arenot
3.What kinds of 
things/documents are privileged/protected in theclient’s hands
?a.Unclear if any things/documents are b.Perhaps something like a diary – which is more testimonialin nature than personal business recordse.
Crime-Fraud Exception (“CFE”) to the ACP
- Client communications to alawyer “in furtherance of criminal or fraudulent activity or closely related to it”are not privileged. (These are communications where the lawyer’s services wereused in furtherance of the crime/fraud.)i.The exception to the ACP applies where legal representation was securedin furtherance of intended, or present, continuing illegality.ii.This exception does not apply to communications between an attorney anda client for crimes or fraud that the client has
already committed 
– pastcrimes. (Don’t want to prevent people from using attorneys when they arein trouble.)iii.The party seeking to apply the CFE must make a prima facie showing othe following:1.The client was engaged in criminal or fraudulent conduct when hesought the advice of counsel, that he was planning such conductwhen he sought the advice of counsel,
that he committed acrime or fraud subsequent to receiving the benefit of counsel’sadvice, AND2.The attorney’s assistance was obtained in furtherance of thecriminal or fraudulent activity
was closely related to it.iv.In Re Sealed Case (Lewinsky ), 162 F.3d 670 (1998) – page 240:1.Monica went to her lawyer (Carter) to have him draw up a falseaffidavit by her in the Jones case.2.
: The perjury was material b/c it was “predictably capable oaffecting the decision of the trial court” therefore the CFE appliesand Carter must produce the affidavit.3.
: The court in this case holds that the CFE applies and thendisregards the 5
Amendment. This is important b/c they have putthe 5th Amendment under the ACP and then stated there is a CFEto the ACP!!v.CFE doesn’t apply if the parties did break the law but were acting in goodfaith.2
vi.Big Tobacco Companies: CTR (Council for Tobacco Research) – funded by the companies and held out to the public as independent, but washeaded by their lawyers so that they could claim ACP.1.The research center was established really for the purpose odefrauding the public!2.This was not a typical litigation situation where memos withdamaging information would be sent to counsel to seek advice.3.They were busted.vii.Purcell v. District Attorney , page 248: manager of an apartment buildingwas fired and told his attorney that he wanted to set fire to the building.Attorney called the police.1.Prosecution tried to get attorney to testify based on CFE to ACP.2.
: ACP still applies and the CFE does not b/c this was notassistance by the attorney in an ongoing crime – they didn’t wantthe attorney to have to testify and the attorney still had the duty of confidentiality to the client.viii.Even if the client’s intentions are innocent and the attorney’s are NOT, theCFE still applies! This area is still in flux.f.
Waiver of the ACP
: A client loses the ACP with respect to a particular communication either by consent or by conduct inconsistent with maintaining the privilege. (Context usually is public disclosure)i.State v. Von Bulow , page 262:1.
: Partial disclosure may constitute a waiver of all of thecommunications between an attorney and a client.ii.Bulow II – Family of murderer argued that communications in the book bythe attorney and in the movie are partial disclosure and thus everythingmust be disclosed:1.
: no only the information disclosed is no longer privileged.
II.Duty of Confidentiality
Basic Rule: ABA RPC 1.6
– page 61 of the supplement.i.
: Watch the interplay between 1.6 and 4.1 (transactions with personsother than clients)ii.(a) Shall NOT reveal information relating to representation unless clientgives: informed consent, if disclosure is impliedly authorized, or permitted by (b).iii.(b) A lawyer may reveal (permissive NOT mandatory) info if hereasonably believes it is necessary:1.Prevent certain death or substantial bodily harm (pretty clear – must be IMMINENT)a.People v. Fentress , 103 Misc.2d 179 (1980) – page 314:Defense attempted to get all the evidence (including thefinding of the body) disqualified b/c of a NY statute: Agovernment agency which obtains evidence of confidentialinformation or any evidence that results from thatdisclosure is not admissible.3

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