Class 4:

Covered Topics so far

- Identify a client + confidentiality (Perez)
- Exceptions to privilege and confidentiality
- Technology: at the intersection – competence and confidentiality

Hot Coffee example:

- Can a lawyer respond to a client’s shitty comment on Facebook?
o Rule 1.6(b)(5) – self-defense cannot be a flag and we cannot use it as an
exception to confidentiality.
o An argument that we can make is that by posting the issue on social media, the
client waived the right for confidentiality so we can use it.
o Courts are not very happy to accept this argument though, the general
understanding is that lawyers should restrain themselves from those situations
because those exceptions don’t apply in that scenario.
o You could call bud and ask him to take it down.
o Or post something like this “Mr. Bud’s description of my advice is inaccurate and
incomplete. However, our state supreme court has adopted confidentiality rules
for lawyers that forbid me to defend myself. I hope readers will understand
that.”

New Topic: Organizational Clients

Everything so far has been about what we owe our clients. It’s easy when we have 1. Things get
messy when we have corporations as clients.
- Rule 1.13: Organization as Client:
o A lawyer employed or retained by an organization represents the organization
acting through its duly authorized constituents.
- The challenge here is identifying who are those constituents: Higher level employees or
lower level employees (key employees and non-key employees).
- Two main Tests to identify constituents:
o Control Group Test – less protective of the privilege
 Identity of constituents:
 Privilege only for those actually running the company
o Subject Matter Test – more protective of the privilege, catches a wide net on
anyone related
 Not identity of constituents: subject and purpose of the communications
 Privilege could be for CFO and a clerk depending on the situation
- Upjohn Co. v. U.S.
o Upjohn Test(s):
  1) the communication involves information made by the corporation’s
employee to the corporation’s counsel at the direction of corporate
superiors, and necessary for the attorney to provide legal advice to the
company (subject matter test is chosen by Supreme Court because they
worried about the narrowness of Control Group test);
 2) (limiting the privilege) the communication and information relate to
matters within the employee’s scope of employment.
 And the employee making the communication was aware that the
information was being shared with the attorney in order to
provide the organization with legal advice. (this makes it unclear
again though because it limits it).
- Post Upjohn Developments:
o Keefe v. Bernard – narrow
o Restatement 73 – very broad
o Applications of Upjohn:
 Purely factual investigations (re Allen)
 Former employees (re Allen) – many courts disagree

Page 36 – Slip and Fall:

- She asked Todd what they told him and demanded his interview notes. Can Parr assert
Tracy’s AC privilege and duty of confidentiality under 1.6?
o Which of the conversations are privileged?
 Privilege is the question here so we apply the Upjohn test. The 1.6 is a
trick he said.
o Which of the conversations are privileged?
o Control group test: only key people
o Upjohn test(s):
o Restatement:
- Kuhn is prob not privileged under restatement.

Rule 4.2: Communication with Person Represented by Counsel:

- In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in
the matter, unless the lawyer has the consent of the other lawyer or is authorized to do
so under…

Rule 1.13: Organization as Client:

- A lawyer employed or retained by an organization represents the organization acting
through its duly authorized constituents.
- (f) in dealing with an organization’s directors, officers, employees, members,
shareholders or other constituents, a lawyer shall explain the identity of the client
when the lawyer knows or reasonably should know that the organization’s interests
are adverse to those of the constituents with whom the lawyer is dealing.
What do Lawyers Owe Clients?
- Competence
- Confidentiality
- Lawyers are agents – principal empowers you to act on her behalf, as agents (lawyers)
we owe:
o Advance client’s lawful objectives
o As defined by clients
o After consultation
o Act with reasonable competence and diligence
o Maintain confidentiality
o Avoid conflicts of interest
- Whatever the lawyer says on behalf of the client also binds the clients, this gets complex
- Lawyers are fiduciaries
- Owe fiduciary duties

Taylor v. Illinois:
- Taylor’s lawyer didn’t file to place a witness on the stand for Taylor, Taylor argued that
it’s his lawyer’s fault, court said too bad. So as a client, you take a risk with picking your
lawyer.

Class 5: