Professional Responsibility Law 115 Wed., Sept. 26

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Professional ResponsibilityLaw 115Wed., Sept.
26
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• Compulsory Limitations on Scope counseling or
  assisting crime/fraud

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• 1.2(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.

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• Comment 10 to 1.2
• A lawyer may not continue assisting a client in
  conduct that the lawyer originally supposed was
  legally proper but then discovers is criminal or
  fraudulent. The lawyer must, therefore, withdraw
  from the representation of the client in the
  matter. See Rule 1.16(a). In some cases,
  withdrawal alone might be insufficient. It may be
  necessary for the lawyer to give notice of the
  fact of withdrawal and to disaffirm any opinion,
  document, affirmation or the like. See Rule 4.1.

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• R. 4.1
• In the course of representing a client a lawyer
  shall not knowingly
• (a) make a false statement of material fact or
  law to a third person or
• (b) fail to disclose a material fact to a third
  person when disclosure is necessary to avoid
  assisting a criminal or fraudulent act by a
  client, unless disclosure is prohibited by Rule
  1.6.

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• Permissive rejection of prospective clients

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• TERMINATING REPRESENTATION

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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(3) the
lawyer is discharged.
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• 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
• (2) the lawyer's physical or mental condition
  materially impairs the lawyer's ability to
  represent the client or
• (3) the lawyer is discharged.

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Permissive withdrawal
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• 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

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• (2) the client persists in a course of action
  involving the lawyer's services that the lawyer
  reasonably believes is criminal or fraudulent

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• 1.16(b)(3) the client has used the lawyer's
  services to perpetrate a crime or fraud

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• (4) the client insists upon taking action that
  the lawyer considers repugnant or with which the
  lawyer has a fundamental disagreement

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• (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

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• (6) the representation will result in an
  unreasonable financial burden on the lawyer or
  has been rendered unreasonably difficult by the
  client or

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• (7) other good cause for withdrawal exists.

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• 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.

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• Problem of organizational clients

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• Rule 1.13 Organization As Client
• (a) A lawyer employed or retained by an
  organization represents the organization acting
  through its duly authorized constituents.

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• 1.13(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.

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• 1.13(b) If a lawyer for an organization knows
  that an officer, employee or other person
  associated with the organization is engaged in
  action, intends to act or refuses to act in a
  matter related to the representation that is a
  violation of a legal obligation to the
  organization, or a violation of law that
  reasonably might be imputed to the organization,
  and that is likely to result in substantial
  injury to the organization, then the lawyer shall
  proceed as is reasonably necessary in the best
  interest of the organization.

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• Unless the lawyer reasonably believes that it is
  not necessary in the best interest of the
  organization to do so, the lawyer shall refer the
  matter to higher authority in the organization,
  including, if warranted by the circumstances to
  the highest authority that can act on behalf of
  the organization as determined by applicable law.

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You are counsel for a small corporation with
three shareholders. Two of the shareholders, who
are also officers, ask you to draw up a contract
between the corporation and what you discover are
entities owned by the officers. This is illegal
self-dealing, but neither crime nor fraud. May
you draw up the contracts?
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Illus. 2 Lawyer represents Client, a closely
held corporation, and not any constituent of
Client. Under law applicable to the corporation,
a majority shareholder owes a fiduciary duty of
fair dealing to a minority shareholder in a
transaction caused by action of a board of
directors whose members have been designated by
the majority stockholder. The law provides that
the duty is breached if the action detrimentally
and substantially affects the value of the
minority shareholder's stock. Majority
Shareholder has asked the board of directors of
Client, consisting of Majority Shareholder's
designees, to adopt a plan for buying back stock
of the majority's shareholders in Client. A
minority shareholder has protested the plan as
unfair to the minority shareholder. Lawyer may
advise the board about the position taken by the
minority shareholder, but is not obliged to
advise against or otherwise seek to prevent
action that is consistent with the board's duty
to Client.
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The same facts as in Illustration 2, except that
Lawyer has reason to know that the plan violates
applicable corporate law and will likely be
successfully challenged by minority shareholders
in a suit against Client and that Client will
likely incur substantial expense as a result.
Lawyer owes a duty to Client to take action to
protect Client, such as by advising Client's
board about the risks of adopting the plan.
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• (e) A lawyer who reasonably believes that he or
  she has been discharged because of the lawyer's
  actions taken pursuant to paragraphs (b) or (c),
  or who withdraws under circumstances that require
  or permit the lawyer to take action under either
  of those paragraphs, shall proceed as the lawyer
  reasonably believes necessary to assure that the
  organization's highest authority is informed of
  the lawyer's discharge or withdrawal.

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Sarbanes-Oxley
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• DUTY OF CONFIDENTIALITY vs. ATTY CLIENT PRIVILEGE

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• duty of confidentiality
• applies everywhere
• keeps lawyer from divulging a wide range of
  information relating to representation
• BUT must give it up if required by court (in
  discovery)

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• attorney client privilege
• evidentiary privilege (reason to refuse to
  divulge in discovery including if asked by
  court)
• much more limited
• does not protect information

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• Attorney-Client Privilege
• communications are privileged
• if made between privileged persons
• in confidence
• reasonable belief no one will learn of contents
  except privileged person
• for the purpose of obtaining or providing legal
  assistance

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Privileged persons

• client
• prospective client
• agents facilitating communication
• agents facilitating lawyers representation

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• A lawyers daughter, who was just involved in a
  hit and run accident, asks the lawyer whether she
  should go to the police. Is this communication
  privileged?

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• A tax lawyers son gives her the information she
  needs to fill out his 1040EZ personal income tax
  form. Are these communications privileged?

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• After few hours after murdering someone, a client
  goes to his lawyer and tells him about the
  murder, in order to allow the lawyer to undertake
  his defense if he is arrested. During the
  meeting, the clients hands are shaking and have
  specks of blood on them. Are the facts that the
  clients hands are shaking and have blood on them
  privileged?

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• A defendant in a negligence case reveals to his
  lawyer that he was looking the other way when he
  hit the plaintiff.
• May the client claim the privilege when he is
  served with an interrogatory asking for the
  content of this conversation?

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May the client claim the privilege if the
interrogatory asks whether he was looking the
other way during the accident?
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Assume the client insists on testifying that he
was not looking the other way during the
accidentWhat must the lawyer do?
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Client says to his lawyer that he though he was
driving recklessly during the accidentAfter
consultation the lawyer concludes that client is
mistaken and that he was exercising due care
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• A client visits a lawyer to discuss the
  incorporation of his business. Present at the
  meeting is one of the clients employees, the
  clients daughter (whom he is babysitting at the
  time), and the lawyers secretary. Are the
  communications privileged?

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Fee Agreements, Client Identity
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Client asks lawyer to pay back taxes to IRS for
client anonymouslyCan lawyer be required to
testify about clients identity?
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Corporate Attorney-Client Privilege
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Upjohn v. United States(U.S. 1981)
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• Who are the constituents that count for the
  privilege
• Upjohn
• Court of Appealss Theory
• Control group
• Supreme Courts Theory
• All employees

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The Court of Appealss view, we think,
overlooks the fact that the privilege exists to
protect not only the giving of professional
advice to those who can act on it but also the
giving of information to the lawyer to enable him
to give sound and informed advice.
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zone of silence?
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One gas station is a sole proprietorship and the
other is incorporated. An accident occurs in each
of the gas stations that is observed only by an
employee. Is the communication between the gas
station's lawyer and the employee privileged when
the gas station is a sole proprietorship? Is the
communication privileged when the gas station is
incorporated?
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73. The Privilege For An Organizational
ClientWhen a client is a corporation,
unincorporated association, partnership, trust,
estate, sole proprietorship, or other for-profit
or not-for-profit organization, the
attorney-client privilege extends to a
communication that(1) otherwise qualifies as
privileged under 68-72(2) is between an
agent of the organization and a privileged person
as defined in 70(3) concerns a legal matter
of interest to the organization and(4) is
disclosed only to(a) privileged persons as
defined in 70 and(b) other agents of the
organization who reasonably need to know of the
communication in order to act for the
organization.
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After receiving the questionnaires, Upjohn
management emailed them to all Upjohn employees.
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governmental attorney-client privilege
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attorney-client privilege in the representation
of law firms
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problems of joint representation of a corporation
and a constituent of the corporation
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Representing joint clients
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• Restatement 75. The Privilege Of CoClients
• (1) If two or more persons are jointly
  represented by the same lawyer in a matter, a
  communication of either co-client that otherwise
  qualifies as privileged and relates to matters
  of common interest is privileged as against third
  persons, and any co-client may invoke the
  privilege, unless it has been waived by the
  client who made the communication.
• (2) Unless the co-clients have agreed otherwise,
  a communication described in Subsection (1) is
  not privileged as between the co-clients in a
  subsequent adverse proceeding between them.

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76. The Privilege In CommonInterest
Arrangements(1) If two or more clients with a
common interest in a litigated or nonlitigated
matter are represented by separate lawyers and
they agree to exchange information concerning the
matter, a communication of any such client that
otherwise qualifies as privileged under 68-72
that relates to the matter is privileged as
against third persons. Any such client may invoke
the privilege, unless it has been waived by the
client who made the communication.(2) Unless the
clients have agreed otherwise, a communication
described in Subsection (1) is not privileged as
between clients described in Subsection (1) in a
subsequent adverse proceeding between them.
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In re Grand Jury Subpoena(1st Cir. 2001)
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First, they must show they approached counsel
for the purpose of seeking legal advice. Second,
they must demonstrate that when they approached
counsel they made it clear that they were
seeking legal advice in their individual rather
than in their representative capacities. Third,
they must demonstrate that the counsel saw fit
to communicate with them in their individual
capacities, knowing that a possible conflict
could arise. Fourth, they must prove that their
conversations with counsel were confidential.
And, fifth, they must show that the substance of
their conversations with counsel did not
concern matters within the company or the general
affairs of the company.
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work product privilege
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R 26(b)(3)(A) Documents and Tangible Things.
Ordinarily, a party may not discover documents
and tangible things that are prepared in
anticipation of litigation or for trial by or for
another party or its representative (including
the other partys attorney, consultant, surety,
indemnitor, insurer, or agent). But, subject to
Rule 26(b)(4), those materials may be discovered
if (i) they are otherwise
discoverable under Rule 26(b)(1) and
(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.
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(B) Protection Against Disclosure. If the court
orders discovery of those materials, it must
protect against disclosure of the mental
impressions, conclusions, opinions, or legal
theories of a partys attorney or other
representative concerning the litigation.
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• Intersection of privilege against
  self-incrimination and attorney-client privilege

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Client says to lawyer I did itLawyer is asked
whether his client said he did itLawyer cannot
assert clients privilege against
self-incrimination - lawyer is not giving
self-incriminating testimonyBUT lawyer can
assert attorney-client privilege
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problem of documentary evidence in the hands of a
lawyer
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• assume incriminating material is given to the
  lawyer
• Will be protected under attorney-client privilege
  to the extent that it would be protected under
  the privilege against self-incrimination in the
  hands of the client
• If not protected under attorney-client privilege
  in the hands of the client, then no
  attorney-client privilege by giving to lawyer

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but when would documentary evidence be protected
by the privilege against self-incrimination in
the hands of client?
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Fisher v. United States(U.S. 1976)
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• Criminal defendant can be compelled to turn over
  incriminatory evidence
• Unless act of responding to request is itself
  testamentary
• Turn over the weapon you used to kill X.

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required records exception
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United States v. Hubbell(U.S. 2000)
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• The government suspects that your client is a
  hitman. Your client draws up an outline of all
  his activities as a hitman the day that he
  realizes that he is under investigation by the
  police. He gives you the outline to you to help
  you represent him. The client also gives you
  checks from his clients as payment for hits.
• The government subpoenas you, asking for the
  outline and for any other documents itemizing
  financial payments to your client for his
  services as a hitman.
• May you refuse to turn over the outline and/or
  the checks?
• Can the government take away the outline or the
  checks if they are found in your office during a
  search pursuant to a valid warrant?