Transcript Professional Responsibility Law 115 Wed., Oct. 10

Professional Responsibility
Law 115
Wed., Oct. 10
• DUTY OF CONFIDENTIALITY vs. ATTY CLIENT
PRIVILEGE
–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)
–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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•
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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
Corporate Attorney-Client Privilege
Upjohn v. United States
(U.S. 1981)
• Who are the constituents that count for the
privilege
• Upjohn
– Court of Appeals’s Theory
• Control group
– Supreme Court’s Theory
• All employees
§ 73. The Privilege For An Organizational Client
When 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.
problems of joint representation of
a corporation and a constituent of
the corporation
Representing joint clients
• Restatement § 75. The Privilege Of Co–Clients
• (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.
§ 76. The Privilege In Common–Interest 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.
In re Grand Jury Subpoena
(1st Cir. 2001)
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.
work product privilege
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 party’s 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.
(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 party’s
attorney or other representative
concerning the litigation.
Let's say that an interrogatory asks
for the names of the people that
the defendant or his lawyer has
interviewed in anticipation of
litigation and whether any reports
were made. Is this material subject
to the work-product privilege?
A witness you interviewed said that
your client was drunk while driving. You
write it up in a witness statement. The
plaintiff requests the statement in a
document request. May you claim that
it is work product under 26(b)(3)? If an
interrogatory asks your client whether
he was drunk, may he refuse to answer
on the basis of 26(b)(3)?
Let's say that an interrogatory asks a
lawyer to put in his own words what
was said in an interview with a
witness that was prepared in
anticipation of litigation. Is this
material subject to the workproduct privilege in R. 26(b)(3)?
The plaintiff serves you with a
document request asking for
witness statements drafted by a
private investigator retained by
your client prior to hiring you,
when he was worried that he might
be sued. May you refuse to turn it
over under 26(b)(3) and/or
Hickman?
The plaintiff serves you with a
document request asking for an
unsolicited letter you received from
a witness. May you refuse to turn it
over under 26(b)(3) and/or
Hickman?
• Intersection of privilege against selfincrimination and attorney-client privilege
- Client says to lawyer “I did it”
- Lawyer is asked whether his client
said he did it
- Lawyer cannot assert client’s
privilege against self-incrimination
- BUT lawyer can assert attorneyclient privilege
problem of documentary evidence
in the hands of a lawyer
• 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 privilege against selfincrimination in the hands of the client, then no
attorney-client privilege by giving to lawyer
but when would documentary
evidence be protected by the
privilege against self-incrimination
in the hands of client?
Fisher v. United States
(U.S. 1976)
• Criminal defendant can be compelled to turn
over incriminatory evidence
– Unless act of responding to request is itself
testamentary
– Easiest case: “Turn over the weapon you used to
kill X.”
– But even if the request is under a more neutral
description, a response can testify as to the
existence and authenticity of the documents and
that can be self-incriminating
• Exception when existence and authenticity of
documents is a foregone conclusion
required records exception
United States v. Hubbell
(U.S. 2000)
• 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?
crime-fraud exception
Restatement section 82
The attorney-client privilege does not apply
to a communication occurring when a client:
(a) consults a lawyer for the purpose, later
accomplished, of obtaining assistance to
engage in a crime or fraud or aiding a third
person to do so, or
(b) regardless of the client's purpose at the
time of consultation, uses the lawyer's
advice or other services to engage in or
assist a crime or fraud
• the attorney-client privilege does not apply to
communications in which the client seeks the
services of the lawyer for what the client knew
or reasonably should have known the purpose
of engaging in crime or fraud
• Lawyer need not know purpose is fraud
– Applies to a “good” lawyer as well as a bad one’
• Also applies to communications subsequently
used for crime/fraud
• But only future (or ongoing) crime or fraud
trigger the exception.
• Communications concerning past crime or
fraud (e.g. when engaged in criminal defense)
do not.
prima facie case
- factual basis adequate to support
good faith belief by a reasonable
person that in camera review may
reveal evidence that crime-fraud
exception applies
exception applies if
reasonable cause to believe that
the attorney’s services were utilized
in furtherance of crime/fraud
• A lawyer is defending his client for arson and
the client tells him, as an aside and merely to
show off, that he plans to shoplift something
after he leaves the lawyer’s office. The lawyer
strongly warns the client about the legal
penalties for shoplifting.
• Is the communication privileged?
• Remember case of the murder defendant who
asks his lawyer what countries have
extradition treaties with the United States? Is
that conversation privileged?
• A client comes to you to ask whether he can
sue someone. You tell him that the facts as he
has related them to you are missing X, a
crucial element for the cause of action. He
thanks you and goes to another lawyer,
recounting the story with X included. He
testifies to X at trial. May your testimony
concerning your conversation with the client
be used to impeach his testimony?
You and your client are engaging in the
negotiation of an agreement between your client
and a retailer. You discover that while you were
out of the room your client falsely told the
retailer that no significant competitor for your
client's product is likely. In fact, you and the client
know that a competitor is about to introduce a
cheaper and better version of your product in a
few weeks.
You discuss with client how best to defend client
if he is sued for fraud. Does the crime-fraud
exception apply?
• Attorney Self-Defense
handling physical evidence of crime
Commwealth v. Stenhach
(Pa. Super. Ct. 1986)
In order to show that the criminal statutes
applied to the Stenhach brothers were
unconstitutionally vague, the court
introduces a scenario under which a client
gives his attorney a handwritten account of
his crimes. Turning the document over to
the police would be required by a literal
violation of the statutes but, as the court
notes, “to do so would be an egregious
violation of the attorney’s duties to his
client.” (p. 34)
• Client robbed someone and threw the wallet
in a trash can (has finger prints on it)
• Tells lawyer about it
• The lawyer removes the wallet from the trash
can and holds on to it in his office without
telling the prosecution.
• Has the lawyer obstructed justice?
• MR 3.4
• A lawyer shall not:
• (a) unlawfully obstruct another party' s access
to evidence or unlawfully alter, destroy or
conceal a document or other material having
potential evidentiary value. A lawyer shall not
counsel or assist another person to do any
such act;
• (b) falsify evidence, counsel or assist a witness
to testify falsely, or offer an inducement to a
witness that is prohibited by law
If the prosecution discovers that the lawyer has
the wallet, can the lawyer be forced to turn it
over to them or would that mean violating the
attorney-client privilege?
• If he can be forced to turn it over, can the
prosecution introduce as evidence at trial the
fact that the wallet originally was found in the
defendant’s trash can?
• How about the fact that the prosecution got
the wallet from the defendant’s lawyer?
The lawyer removes the wallet
from the trash can and examines it
for evidence favorable to his client.
He finds nothing. He then gives it
to the police anonymously with a
note attached that says that it is
the victim’s wallet.
• The lawyer removes the wallet from the trash
can and examines it for evidence favorable to
his client. He finds nothing. He then gives it
to the police, telling them that he got it from
the defendant’s trash can
• Has the lawyer obstructed justice?
• May the prosecution introduce as evidence
the fact that the wallet came from the
defendant’s trash can?
• May it introduce the fact that the lawyer gave
the wallet to the police?
• The lawyer looks at the wallet in the trash can
without touching it, to see if he can find any
evidence favorable to his client. He doesn’t,
so he leaves the wallet in the trash can
without telling the prosecution.