SECHLAR—PROFESSIONAL RESPONSIBILITY—FALL 2016
7 C’s
*competence; *communication; *confidentiality; *candor; *(resolve) conflicts; *(avoid) complicity; *client
Spaulding v. Zimmerman
Rule 2.1: in rendering advice, a lawyer may refer not only to the law, but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.
-∆ lawyer should have asked his client for permission to disclose aortic aneurism, b/c his death was imminent, despite the fact that it would have skyrocketed settlement value
Rule 1.6(b): lawyer may reveal info relating to the representation of a client to the extent the lawyer reasonably believes necessary (1) to prevent reasonably certain death or substantial bodily harm. ***Always try to get the client on-board first tho!
Stenhach
Turnover Rule: physical evidence must be turned over to the prosecution. E.g., a rifle stock. However, a handwritten account by your client wouldn’t trigger this here: R. 1.6 Duty of Confidentiality
CRIMINAL/TORT LIABILITY FOR LAWYERS
In re Matter of Krueger: Attorney told divorce client to just rent an apartment in WI b/c WI law req’d residency. Didn’t have intent to remain tho. This is basically lying to the court.
Don’t create false evidence. Can’t shape the facts in a way that is false.
Rule 3.3 Candor toward Tribunal
(a)(1): can’t make a false statement of fact
(a)(2): need to disclose adverse authority
(a)(3): can’t offer evidence that the lawyer knows to be false
(b): need to take reasonable remedial measures if client is engaged in criminal/fraudulent conduct
US v. Gellene: Attorney did not make full dislosures, he represented a debtor while simultaneously representing certain creditors in the same bankruptcy proceeding. Take conflict checks seriously! Disclose everything!
Arthur Anderson LLP v. US: need to enforce strict litigation hold policy! Evidence must be preserved immediately.
*The means don’t have to be corrupt if the ends are to trigger criminal conduct
US v. Cintolo: means, tho lawful in themselves, can cross the line of illegality if (i) employed with a corrupt motive, (ii) to hinder the due administration of justice, so long as (iii) the means have the capacity to obstruct.
Greycas, Inc. v. Proud: don’t cut corners or lower your regular standards (duty of inquiry) of practice just b/c you’re representing your family. Takeaway: Your duty and liability can be extended to non-clients under theories of malpractice and negligent misrepresentation.
Don’t let clients use you.
Rule 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.
WHO IS THE CLIENT
Rule 1.13 Organization as Client
A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
-so often, corporate representatives can’t just tell you shit “off the record,” b/c it becomes knowledge and information about the corporation, and attorney obliged to share it with other members/directors of the corporation.
Comment 3: When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful.
“Going up the Chain:” If a lawyer for an organization knows that a constituent has or will act (or refuse to act)
in a matter related to the representation;
in violation of a legal obligation; and
is likely to result in substantial injury to the organization;
THEN, the lawyer shall proceed as is reasonably necessary in the best interests of the organization.
Disclosing Outside: If despite best efforts and subject to (d), the highest authority refuses to act or insists on action that
Is clearly a violation of law, and
Is reasonably certain to result in substantial injury to the organization,
THEN, the lawyer may reveal client information but only “to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
Limits of Disclosure: Paragraph (c) doesn’t apply with respect to information relating to a lawyer’s representation of an organization to investigate an alleged violation of law, or to defend the organization . . . against a claim arising out of an alleged violation of law. So if you receive documents or paper evidence that shows criminal liability, you don’t have to turn it over.
Handling Termination
-can’t just quit or resign if things are going very badly;
-if you’re fired, need to ensure the highest authority of the organization is informed of the discharge/withdrawal, and of the situation.
(f): Upjohn warning: when the organization’s interest becomes so adverse to one or more of its constituents, need to clearly express the COI and that you can’t represent constituent.
(g): Can do joint representation of the organization and constituent, but there needs to be a conflict waiver signed by someone other than the particular constituent being represented.
In re Grand Jury Subpoena: you can only claim privilege for information relating to your personal rights, but not for your corporate capacity rights .
Bevill Test used for joint-defense agreements (see 1.13(g))
5 benchmarks that corporate employees seeking to assert a personal claim of AC privilege must meet:
Must show they approa
t.
Upjohn v. United States: Control group test rejected. AC privileges extends to:
Communications made by employees
to counsel
to secure legal advice
concerning matters within the individual’s employment.
-danger in having a family member represent you is that a court may construe, b/c of the context of the relationship, that the communications were personal and not professional.
Rule 2.1: Advisor
-can’t be a “yes man” as an attorney. Need to exercise independent professional judgment and give candid advice.
Inadvertent Disclosure: courts are split as to whether this constitutes a waiver.
One approach: it’s a waiver
2nd approach: it’s NOT a waiver, you need intent.
3rd approach: if you’re reckless, and a reasonable person wouldn’t have disclosed this, then it constitutes a waiver. If it was a reasonable mistake, it’s not a waiver.
Complete waiver: everything is waived
Partial waiver: only certain statements are waived
Selective waiver: waived only as to select individuals
In re Columbia/HCA Healthcare Corp. Billing Practices Litigation
Crime/Fraud Exception: AC privilege is NOT established when the client is engaged in ongoing/future criminality.
-US v. Chen, 2-step test to see if Crime/Fraud Exception Applies:
1. party seeking to break privilege must satisfy the judge that there is “a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the CF exception applies
2. If so, the otherwise privileged material may be submitted for in camera examination.
“The test for invoking the CF exception to the AC privilege is whether there is ‘reasonable cause to believe that the attorney’s services were utilized in furtherance of the ongoing lawful scheme.”
DUTY OF CONFIDENTIALITY CONTINUED
Rule 1.6: anything relating to your client is confidential, and you can’t disclose it UNLESS:
-client gives informed consent;
-disclosure is impliedly authorized in order to carry out representation
-disclosure is authorized under 7 instances under paragraph (b)
