•

Problem of organizational clients

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

• Two hundred people owning land adjoining an airport hire you to sue the airport for nuisance. • They agree that a vote of the majority is enough to bind all of them to a settlement. • In the end, 101 people want to settle -- the remaining 99 have told you that they do not want you to settle and do not give you the authorization to settle for them. • Can you enter into a settlement for the 99 if dissenters if you are representing a group entity alone? • Can you do so if you are merely representing 200 people jointly?

• 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.

• Comment 10: There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.

• You are corporate counsel and like to talk with people on the assembly line about cases that the corporation is pursuing. Is this OK?

• 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.

• 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.

• you are outside tax counsel to company that makes cars • you find out cars will explode • VP wants to keep selling • makes economic sense even given liability

• You find out that the corporation that you are counsel for is a front for the Mob. Does MR 1.13(b) apply?

• You are counsel for a corporation and find out that an employee has cheated on his income taxes. Does MR 1.13(b) apply?

• (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.

•

DUTY OF CONFIDENTIALITY vs. ATTY CLIENT PRIVILEGE

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duty of confidentiality

•

applies everywhere

•

keeps lawyer from divulging a wide range of info 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 info

• • 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

Privileged persons

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

• A lawyer’s 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?

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

• 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 client’s hands are shaking and have specks of blood on them. Are the facts that the client’s hands are shaking and have blood on them privileged?

• 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? • May the client claim the privilege if the interrogatory asks whether he was looking the other way during the accident?

• A client visits a lawyer to discuss the incorporation of his business. Present at the meeting is one of the client’s employees, the client’s daughter (whom he is babysitting at the time), and the lawyer’s secretary. Are the communications privileged?

Corporate Attorney-Client Privilege

• Who are the constituents that count for the privilege • Upjohn – Court of Appeals Theory • Control group – Supreme Court’s Theory • All employees

Representing joint clients

• Lawyer represents X and Y in connection with their establishing a dry cleaning business. X sends Lawyer a memo outlining his views about how X and Y were to divide the profits of the business. A year later X and Y start disagreeing about distribution of profits. Y sues X and asks in discovery for X’s memo to lawyer. May Lawyer and/or X claim that the memo is privileged?

• 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.

• Also applies to common interest arrangements

• Crime-fraud exception • 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.

• 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?

• Attorney Self-Defense

• Waiver – Not asserting privilege

• Waiver through disclosure in non privileged setting

• Rule 4.4 Respect For Rights Of Third Persons • (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

• Waiver through putting into issue

• Intersection of privilege against self incrimination and attorney-client privilege

• Begin with privilege against self incrimination and documentary evidence • 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.”

• Now 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

• 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?

Obstruction of 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

• 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. • Is 3.4 violated?

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, telling them that he got it from the defendant’s trash can.

• 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.

• 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.

Work-Product Privilege FRCP26(b)(3)

• 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). • can be overcome if • substantial need and cannot, without undue hardship, obtain their substantial equivalent by other means