PR Outline Duties (I) a. Loyalty i. Requires attorney s to put their clients interest above their own interests b. Care (MR 1.1) i.

Requires an attorney to act reasonably and carefully when performing work for clients 1. Care is judged by the prevailing standards of professional competence in the relevant filed of law and geographical region. More on (page 3) c. Confidentiality i. You may not use for your own benefit or disclose information related to your representation that is not generally known 1. A lawyer cannot: a. Disclose Information without authorization, OR b. Use Confidential information for his/her own benefit d. Risks to Attorney s i. You must think Dynamically and Interactively 1. Dynamically a. Thinking many, many steps ahead 2. Interactively a. Anticipate and look at actions of others involved (prosecutor, client, client s associations)

Authority (II)[MR 1.2(a) & MR 1.4] a. An agent has the power to change a principal s (client s)legal status either by act or omission (within bounds of client s assent) i. The Agent cannot lie to the principle ii. The principle is bound by duties of the agent (US v. 7108 West Grand Ave.) b. Authority is power created by assent, there are 2 relevant types or Authority: i. Actual Authority 1. Created by communications from the client to the lawyers 2. Can be: a. Expressed OR b. Implied i. Always has to hang on some sort of allocation in the relationship 3. Principal agrees that the agent has power ii. Apparent Authority 1. Created by representations from the client to a 3rd party 2. Exists when the client makes representations to the third party that gives the 3rd party a reason to believe that the attorney has the power to do something a. Must be apparent to the third party based on acts of the principal(a lawyer cannot create apparent authority)

You can t tell a client they have to agree to a settlement if the majority does vii. Refers to an agreement between a lawyer and a client that the lawyer will provide some but not all services necessary to resolve the client s problems ii. Must comply with reasonable requests for information ix. Generally Known . whether to waive jury trial and whether the client will testify. Unbundling (page 46) i. A lawyer may limit the scope of the representation if it s reasonable and he gets the client s consent iii. 3 Series (MR 3. 3. Inherent Authority 1. For Example) In mediation proceedings. Further (Scope of MR 1. A Lawyer must consult with their client about the law ii. Keep in mind that the Duty of Confidentiality {Attorney-Client Privilege a. MR 1. or in public electronic-data storage is generally known if the particular information is obtainable through public available indexes and similar methods of access. Settlement proceedings are NOT waive-able v. when an attorney goes the client has conferred the right to settle d. In general you must follow lawful client commands 1. 1.Information contained in books or records in public libraries. The Duty of Confidentiality .arises from the duties of loyalty and care i. . Must consult about the means in a case x.4) (Page 47) i.1 Forbids lawyers from asserting frivolous claims 2. Can t assist a client to violate the law iv. Meaning that there has been a manifestation of assent to the 3rd party that the attorney has power c. An attorney can t make a client sign an agreement assigning their right to claim fees to you vi. A lawyer shall abide by a client's decision whether to settle a matter or as to a plea to be entered.2 and 1.2(c) says that limitations must be reasonable Confidentiality (III) [MR 1. Judges will treat attorney as if they do have power in certain situations a. A lawyer does not have the power to bind a client without their consent (Blanton. public-record depositaries such as government offices.2 Requires counsel to make reasonable efforts to expedite litigation 3.1 3. in this case no authority agree to binding arbitration) e. No Settlement refusal tax 1.9] 1.4) i. Must keep client up to date viii. 3. You can t assign around 1. Pertains to all information an attorney learns in the course and scope of representing a client that is not generally known: 1.3 Forbids lawyers from lying to tribunals or from introducing evidence the lawyer knows to be false f.6 and 1. 3.i.

Test: Can you put this up on your Web-Blog 2. d. e. the duty to protect confidential information continues even after the formal relationship ends 1. However. information shared during an initial consultation is privileged even if you re not ultimately hired iii. Always remember you re a fiduciary Privilege .What is the difference between what you know and what you took from the client? 1.9) i. The privileges or confidences belong to the client (whether the client is a person or an entity) Duty of Confidentiality to Former Clients (MR 1. In California their identity is privileged ii. it is NOT in the 2nd Circuit 1. Something like fee arrangements are facts (because it s not a communication even though it is a product of a communication) a. There s a difference between people being able to dig and find it and what is generally known i. You can have a duty of confidentiality without a duty of care a rule of evidence i. Meaning. This gets tricky however when thinking about a clients identity i.b. the duty of loyalty extends to current clients even when it is generally known Confidentiality of Information Consent [MR 1. not with respect to facts 1.6 (b)]: i. However. Pertains only to confidential communications b/w lawyer and client ii. Can t use or revealinformation relating to representation to disadvantage the client unless that information has become generally known ii. Ask Yourself . These apply in regards to representation of a former client from either your current or previous firm iii. Using confidential information for your own benefit iv. You cannot use confidential information to compete with a client An Attorney May Reveal Confidential Information if [MR1. the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) ii. Sharing confidential information with others that detriments the client iii. Loyalty-Like violation of Confidentiality 1. You can only assert privileges with respects to communications. Thus. Can t disclose information related to representation 1. Care-Like violation of Confidentiality 1.6(a)] i. c. To prevent client from committing crime or fraud reasonably certain to result in substantial injury to financial interest and property . To prevent reasonably certain death/substantial bodily harm ii. Not Generally Known Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. a. A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. ii.

To prevent. (2) Unless the co-clients have agreed otherwise. Confidentiality with Multiple Clients (Duty of Confidentiality to Joint Clients) (Res §75) i. This element is retrospective 2. I m not going to have this conversation with you. if you don t know what you re doing. Meaning that the entire dilemma could have been avoided with a properly written retainer iii. you just need assertion against attorney 2. The Client must have used the attorney s services for it iii. ii. 1. There s a duty by the attorney to keep the client informed . care. and loyalty to each of the joint clients separately a. If we claim something you won t have to ask. a communication described in Subsection (1) is not privileged as between the co-clients in a subsequent adverse proceeding between them 1. 1. You cannot disclose confidential information to opposing counsel g. However. (1) If two or more persons are jointly represented by the same lawyer in a matter. a. Disclosure Not for Personal Benefit i. You cannot preemptively disclose the information vi. NOTE: Mark Twain: It s easier to stay out than to get out.Even if you only said that it was privileged information in response to the opposing attorney s question as to whether you are asserting that the husband is molesting the kids. You do not have to wait to be sued. Don t get you client in trouble in the real world ii. but they didn t do through attorney. mitigate or rectify substantial injury to financial interests or property of another reasonably certain to result or has resulted in client s commission of crime or fraud using attorney s services 1. OR 3. If you find out the client did something to harm financial interests. To secure legal advice about compliance with rules v.1. What most attorneys will do is stipulate that they have discretion to disclose information to both clients in the retainer agreement 2. To comply with other law or court order f. A v. There are 2 goals: 1. B. You don t even need to say anything iii. a communication of either co-client that otherwise qualifies as privileged under §§ 68-72 and relates to matters of common interest is privileged as against third persons. Don t get disciplined 2. The default is that you owe a duty of confidentiality. To establish claim or defense on behalf of lawyer in controversy between lawyer and client 1. now if you want to talk call me later. unless it has been waived by the client who made the communication. and any co-client may invoke the privilege. you still could get in trouble. don t do anything at all iv. NOTE: In general. The attorney should have said. California doesn t allow disclosure for financial harm 2. Pressley . OR 2. you ll know. you cannot reveal the information iv.

You are not allowed to disclose once the criminal act has already been done a. NOTE: You ll never get disciplined for not disclosing b.13] i. or other people who act on behalf of the entity (entity constituents) ii. MR 1. Exceptions to the Duty of Confidentiality a. The self-Defense Exception to the Attorney Client Privilege 1. I exercise my right to defend myself against BLANK b.6(b)(1) . Under the Model Rules. Meaning that you do not represent the officers. However. The duty of confidentiality is to the entity and the entity s duty of confidentiality can be waived so you can give the information you received from the constituent to the prosecutor 2. directors.6 (b)(5)] to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. As the attorney you must dispel any ambiguity as to who you represent 1. or to respond to allegations in any proceeding concerning the lawyer's representation of the client. you need to make it clear that you represent the entity and not them (the constituent) individually iii. There s a duty of confidentiality as well 2.In representing an entity you represent the entity itself. to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved.6 CMT 10) The lawyer may not counsel or assist a client in conduct that is criminal or fraudulent.a. it s the individuals burden to show representation (or joint representation) h. The obligation to disclose attaches at the time of receiving information iv. 1. However. An attorney may make disclosure of confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct. Thus.3(a)(4)] 1. An attorney can disclose if they ve been defrauded a. This is essentially the MR 1. Physical and Economic Harm [MR 1. Don t need to wait to be sued in order to defend yourself b. Lawyer Self.6 (b)(1)-(3)] i. When questioning a constituent You have to say that you represent the company and not the constituent because you then have no fiduciary duty to the constituent 2. (MR 1. If the constituent might misunderstand your role. A lawyer has a duty not to use false evidence [MR prevent reasonably certain death or substantial bodily harm.Defense i.2 duty for a lawyer to avoid assisting a client in criminal or fraudulent conduct ii. you have a responsibility to keep the best interests of the company itself in mind 1. not the people who work for it. As a default matter . Entity Representation and Entity Constituents [MR 1. iii. 1. But you need to say. a. [MR 1. Disclosure is only permissive. NOT mandatory .

There is no bright line rule as to except for the concept of necessity: 1. the client could not be compelled to testify about the discussion itself b. a. It therefore survives termination of representation. The communications must be between a lawyer and a client. or his subordinate and (b) in connection with this communication is acting as a lawyer. Then you MUST act in the best interest of the entity and not the constituent 3. Threatens substantial harm to the entity. Translator etc. and 2. Ex. The duty to maintain client confidences applies until a client releases the lawyer from the duty or the information in question becomes generally known. Not Facts i.Communications. Paralegal. and 3. Confidentiality and Conflicts of Interest (later explained in Chapter 10) a. (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding. The attorney-client privilege does not apply to confidences given in the presence of third parties ii. including through intermediaries reasonably necessary to further the purposes of the representation . In Confidence i. not facts. made in confidence between an attorney and a client relating to legal advice y The traditional elements of the attorney client privilege that identify communications that may be protected from disclosure in discovery are: (1) the asserted holder of the privilege is or sought to be come a client. The conduct is related to your representation.) Accountant. Between an Attorney and a Client i. and (4) the privilege has been (a) claimed and (b) not waived by the client.c. However. Elements of Attorney-Client Privilege y Privilege . Protecting an Entity Client (Page 53) i. ii. Communications. 3rd Party agents acting at the discretion of the attorney do NOT destroy the privilege 1. not facts a. in confidence. and not (d) for the purpose of committing a crime or tort. A client might have to testify about facts he discussed with a lawyer b. The privilege extends only to communications. Attorney Client Privilege (IV) 1. Breaching duty to the entity or breaking the law in any way attributed to the entity. If you know a constituent is: 1. It s you as the attorney to be responsible for knowing what and what is not privileged c. (2) the person to whom the communication was made (a) is a member of the bar of a court. i. A communication of fact and facts are two separate things 1. ii.

d. and 3. (1) the existence of a prior A/C relationship between the moving party and the opposing counsel. A corporations A/C privilege can be waived by current management iii. the individual must show: 1. No individual privilege exists in regards to documents that the corporation also has a privilege to ii. v. There can be instances where the court will find certain communications privileged and others non-privileged. has the power to fire you. However. The catch of this rule is that when you are hired to represent an entity. Representing an Entity and an Officer (in an Individual capacity i. Primary Purpose Test What was the purpose of the communication? 1. The more routine your participation looks. in merger situations -> the new company does not have control over privileges with regards to legal communications between an attorney and the old company iii. The non-privileged are those not pertaining to legal advice. 2. Control of the privilege passes with control of the company a. Bevill Test: To rebut the presumption that an attorney represents the corporation and not an individual. Test 1: If the communication is the same as it would have been with or without a lawyer then the information is not privileged iii. (2) that the matters involved in both representations are substantially related. Test 2: If the communication was involving legal advice then it is privileged 1. Note however. A party seeking DQ of its adversary s lawyers must prove: 1. The best analysis is done on a communication by communication basis ii. Meaning just because an attorney plays a role of an agent doesn t make all communication privileged 2. Mergers i. Entities and Privilege(Restatement §73) a. pays you. Thus. the person that hires you. Relating to Legal Advice i. Default RULE is that: 1. They approached counsel for the purposes of seeking legal advice . i. Thus the privilege is never secure because there is always the possibility of mergers and acquisitions ii. the more the court is going to think that you are just trying to bring privileged to the table iv. Typically agents don t get the attorney-client privilege whereas attorneys do 1. the constituent does not have a privilege in regards to his communication between himself and the attorney b. (3) that the interests of the present client and former client are materially adverse. Needs to be for legal advice 2. Is it pertaining to legal advice or is the lawyer just present over ordinary deliberations? 1. c. and instructs you what to do is NOT your client (the entity is).

Intra-Firm Communications and Privilege a. This is the default and Res. Communications Furthering Crime or Fraud(Res § 82) i. when joint clients wind up in litigation against each other neither client may assert the privilege against each other 3. 3 the evidence itself supports more likely than not standard b. §75 view 2. That when they approached counsel that they made it clear they were seeking legal advice in their individual rather than in their representative capacities. Even when someone has become adverse there is still no privilege and nothing has changed a. uses the lawyer s advice or other services to engage in or assist a crime or fraud. A party asserting the crime-fraud exception must make a prima facie showing that the communication it wants to disclose was made in furtherance of a crime or fraud. Exceptions to the Privilege a. Thus. § 90 CMT (c) Lawyers must disclose work product material if the client chooses to waive work product protection 4. consults a lawyer for the purpose. or 2. 2 probable cause to believe the crime has occurred in furtherance of the communication c. The client must have carried out the crime or fraud iii. The client must have made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act 2. ii. b. Thus the elements are that: 1. That their conversations with counsel were confidential 5. a. Res. 1 . regardless of the client s purpose at the time of consultation. The other approach is that once the joint clients become adverse a privilege then occurs . That the counsel saw fit to communicate with them in their individual capacities. Joint Clients(Res § 75) i. Can you keep info from your client when you messed up on their case and you seek advice from another attorney in your firm i. When joint client s become adverse: 1. There are jurisdictional splits a. The attorney-client privilege does not apply to a communication occurring when a client: 1. of obtaining assistance to engage in a crime or fraud or aiding a third person to do so. knowing a possible conflict could arise 4. later accomplished. the discretion of the entity anything (info) can be given to the government 3.2.They must establish the ongoing elements of an ongoing or imminent crime or fraud. 1. NOTE: This rule makes it impossible for a lawyer to truthfully tell a constituent that they will keep their communications confidential because as a matter of law under Bevill. That the substance of their conversations with counsel did not concern matters within the company or within the general affairs of the company 3.

it is essential that participants in an exchange have a reasonable expectation that information disclosed will remain confidential v. However. The general rule The disclosure of a privileged communication within the scope of some other privilege is not a waiver (priest. Partial Waiver a. Exceptions (page 61) i. Courts view (3 way split) to waiver 1. Asks the question of whether you can grant disclosure of information to some parties and not to others i. The risk is disqualification a. The threat of regulatory action or indictment 4.c. In communications among parties with common interests. A third group focuses specifically upon whether the client intended to waive the privilege iii. Keep in mind that the client is bound by the attorney s actions. The default rule is . if you waive at all you have to waive to everyone b. You cannot cherry pick just the good parts and neglect the bad parts 2. Waiver i. Some Courts have followed a strict responsibility approach. Selective waiver a. viewing the client s intent as irrelevant 2. if co-clients become adverse. Inadvertent Disclosure 1.4(b) says a lawyer that knows or should know that the document was inadvertently sent should promptly notify the sender iv. doctor) d. This allows you to disclose info outside of the privilege bubble without waiver 1. In general. It is an exception. Other Courts use a balancing approach taking into consideration several factors 3. Common Interest Exception to Waiver(Res § 76) i.If you waive privilege you waive it i. 4. Anytime you have a client that wants to make a waiver. Select and Partial Waiver a. The general rule when a party wants to waive certain but not all communications is that all communications must be waived 3. ii. you have to first find out what is in the scope of that waiver v. Disclosure Within Another Privileged Relationship 1. NOT a privilege ii. Coercion ii. Joint-Defense Agreements(Res §76) . If you have a common legal interest it may still be privileged a. the privilege in common-interest arrangements is no more unless they have agreed otherwise iii. The Common Interest Doctrine cannot be invoked unless there is an underlying claim of privilege iv. spouse. Deliberate Disclosure 1.

You have to set up a JDA up front so that a client is aware of its terms Work Product V 1. unless they contain or reflect A/C communications or attorney work product 5. if the lawyer is engaged in the criminal or fraudulent activity this would make the opinion work product discoverable ii. However. Scope a.Unlike Privilege. There s no such thing as a joint defense privilege a. Fact Work Product (other forms of work product) i. Common Interest Exception WP . Only a joint client agreement would create the duty of loyalty 3. Origins of the Doctrine 5. loyalty. It does not protect documents from disclosure. where parties collaborate on work product each contributing party must agree to waive protection for a waiver to be effective 4. Ex. JDA do not create a duty of care. Opinion Work Product is virtually never discoverable i. Documents your intention to take advantage of the common interest exception 2.1. and confidentiality as well a. Waiver a. Federal cases are divided on whether work product protection is forfeited when a cliet engages in criminal or fraudulent activity (and the lawyer is suspected of knowing participation in the activity) i. ii. Exceptions a. The Prepared In Anticipation of Litigation Requirement . This is protected so long as your notes did more than simply transcribe what a witness said b. there s no privilege between C1 and C2 4. Work product protection is waived if the work product is placed at issue or is disclosed to a testifying expert i. The Joint Defense Agreement merely evidences an expectation of confidentiality necessary to avoid waiver by disclosure to someone outside the A/C relationship (Common Interest).) A statement from a witness who later died or forgot the relevant events 2. These may be discoverable if the other party can show substantial need and it can t get the information in some other way without substantial hardship. This reflects the mental impressions and conclusions of an attorney 1. Thus it is not loyal for C4 to shred C3 on the stand because there was a duty of loyalty? i. Atorney 1 needs to be able to talk to client 4 b. a. Even so. Another exception is self-defense 3. Fact Work product could also be discoverable if the client is criminal or fraudulent b. A lawyer can assert the opinion work product doctrine 1. however. Thus.

1. You have a duty of: 1. 20.4) (Res §16. Malpractice (1 year limitation) i. Example: The lawyer didn t perform as promised 2.Never create a duty you don t want 1. Civil Malpractice a. Primarily to assist in litigation b. Tort (different than malpractice) 1. 48-49. Breach of a promise that doesn t fall within malpractice or breach of fiduciary duties c. Breach. Think of this as an intentional tort a.3-1. Competence 2. Communication a. Only material prepared in anticipation of litigation is protected work product under the federal laws LOOK AT THE CHART ON PAGE 16! Duty of CareVI . You have a duty to tell your client if and when you are negligent iii. and Proximate Cause from TORT LAW 2.2(c). Remember Duty. Think of this as a negligence claim in tort a. Rule #1 . Example: the lawyer stole from me . 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. Breach of Fiduciary Duty i. Diligence 3. Breach of Contract is a (4 year limitation) i. Generally No Puni s 2. ii. Likely to have punitives 2. Keep client informed promptly b. Consult with them c. 50-56) i.1 1. Comply with reasonable request for information d.The duty of care requires an attorney to act competently (reasonable care) and diligently . Example: the lawyer is a coke head and missed trial b.a. 3 main types of actions brought against attorney s (usually all brought at the same time) a. Contract 1. Types of cases brought Against Attorneys (TOLLING INCLUDED) 1. Duty and Breach (MR 1. Duty a. Tort 1.Reasonable Care = what a competent lawyer would do under similar circumstances 1. Cause.

the T may use circumstantial evidence to satisfy his burden. Also: Anytime a complaint rests on a duty of care. Burden of proof is on the lawyer 2. a. NOTE: Some states will combine a breach of contract into a malpractice claim 3. it s totally independent a. 2. Scope of Your Duty of Care 1. among other things. ii. Causation and Damages i. in a breach of fiduciary duty claim the burden of proof is on the lawyer iv. 3. An expression concession by the other parties to the negotiation that they would have accepted other or additional terms is not necessary. the T need only to introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the was a cause in fact of the result. You (the attorney) need to tell them (the client) enough that there is a category of claims that they should look into that you will not be looking into for them a. you need to tell them about the tort claim so the SOL doesn t run on them v. A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. Limitations and Tolling i.The case within a case or trial within a trial puts a burden on the plaintiff (former client) to show that their original case would have wound up more favorably if not for the mess-ups of the defendant lawyer ii. The client must prove this causation element according to the but for test meaning that the harm or loss would not have occurred w/o the attorney s malpractice. c. The T need not prove causation w/ absolute certainty. the client must prove. There is no cause of action for violating a disciplinary rule. a. Thus.) If you represent them on a workers compensation case but they also have a tort claim. In a client s action against an attorney for legal malpractice. Rather.a. When you take on a representation as a matter of law your duty expands to informing the client of things they might need to think about but what you will not think about for them 2. Ex. The plaintiff has not sustained actual injury. In transactional malpractice cases. The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or . However. Case within a Case . Discipline 1. that the attorney s negligent acts or omissions caused the client to suffer some financial harm or loss. 1. a breach of a duty can be measured by an attorney s violation of the rules b.

September 29th of the notes Do Problems 4-2 and 4-3 . (4) The plaintiff is under a legal or physical disability which iii. Note on Fee Disgorgement 2. (3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney. restricts the plaintiff's ability to commence legal action. Criminal Malpractice 3.omission occurred. The Constitutional Standard of Care In Criminal Cases: The Ineffective Assistance of Counsel Doctrine 4. except that this subdivision shall toll only the four-year limitation. Note on Fee Disgorgement Continue on page 11 of the book. d.

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