Professional Responsibility
I. The Client-Layer Relationship
a. Is there a client here?
b. Elements of the Client-Lawyer Relationship
i. Competence RULE: 1.1 – In representing a client, a lawyer must act competently and with the legal knowledge, skill, thoroughness, and preparation that are reasonably necessary for the representation.
1. Legal Knowledge and Skill – In determining whether a lawyer has the necessary skill to handle a matter, factors to be considered include the complexity and specialized nature of the matter; the lawyer’s general experience and his training and experience in the field in question; the amount of preparation and study the lawyer will give to the matter; and whether it is possible for the lawyer to refer the matter to, or consult with, another competent lawyer
– Becoming Competent through Preparation – A lawyer may accept representation if the requisite competence can be achieved by reasonable preparation.
– Emergency Situations – A lawyer who is not competent in the field may assist a client in an emergency
2. Thoroughness and Preparation – A lawyer must inquire into any analyze the facts and legal elements in order to adequately prepare a matter.
3. Maintaining Competence – Lawyers should take reasonable steps to keep abreast of new developments in the fields in which they practice.
ii. Confidentiality RULE: 1.6 or DR 4-101
1. General rule is absent the consent of the client, a lawyer must not reveal any information relating to the representation of the client.
Client communications revealing Information for which
Intent to commit future crime likely disclosure expressly or
To cause substantial bodily harm impliedly authorized by
client
– Lt. Blue – Duty of Confidentiality
i. All information relating to representation of client protected from voluntary disclosure and from use harmful to client.
1. Relevant preexisting documents and things
2. Mechanical details of attorney-client relationship (e.g., fee arrangement, client identity)
3. Information concerning past frauds involving attorney’s services
4. Communications made when client seeks attorney’s services in future crime or fraud
5. Communications between attorney and client with third party present.
– Yellow – Attorney-client Privilege
i. Confidential communications protected against compelled testimony
1. Conversations between attorney and client
2. Letters and other documents between attorney and client.
2. Three differences between confidentiality and privilege.
– Attorney client privilege is a rule of evidence it prevents a court from using its powers to obtain confidential information between a attorney and client. Confidentiality on the other hand prevents the attorney from voluntarily revealing information relating to the representation of a client.
– The ethical duty of confidentiality covers more kinds of information than the attorney client privilege.
i. Attorney client privilege protects only confidential communications between the attorney and client.
nt.
Holding: A lawyer breaches his fiduciary duty to maintain his client’s confidences by disclosing an unprivileged statement after representing that it would be kept confidential. Once an attorney client relationship arose between the P and the D, D had a fiduciary and ethical duty not to disseminate statements P made to then in confidence, regardless of whether the statements were privileged or not.
Rule: A lawyer may breach his fiduciary relationship to his client either by wrongfully disclosing a privileged statement or by disclosing an unprivileged statement after wrongfully representing that it would be kept confidential.
4. RULE 1.13 or DR 5-109 Entity Clients (Corporations)
– When the client is a corporation, the privilege covers communications between the lawyer and a high-ranking corporate official. It also covers communications between the lawyer and other corporate employees if the following conditions are met…
i. The employee communicates with the lawyer at the direction of the employees supervisor.
ii. The employee knows that the purpose of the communication is to get legal advise for the corporation; AND
iii. The communication concerns a subject within the scope of the employee’s duties for the corporation.
