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Legal Profession
Santa Clara University School of Law
Yosifon, David G.

 
LEGAL PROFESSION YOSIFON FALL 2015
 
I.       CLIENT CONFIDENTIALITY
a.       STATUTES
                           i.      Ca Bus. & Prof. Code § 6068(e):
1.       it is the duty of an attorney… to maintain inviolate the confidences, & at every peril to himself/ herself to preserve secrets, of his/ her client 
a.       However, a lawyer may reveal clients confidences: to the extent the attorney reasonably believes necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death, or substantial bodily harm to, an individual  
b.      Admitting a crime to lawyer will not suffice to break AC privilege in CA; would have to be planning to commit crime in future
b.      DUTY OF CONFIDENTIALITY
                           i.      Lawyer’s obligation to hold  confidential the information learned in the course of representing a client
1.       Agency relationship à agent (lawyer) required to keep principal’s secrets
a.       It’s a fiduciary duty; so even if there are no rules, he has to keep info confidential
2.       A lawyer cannot:
a.       Reveal information “relating to representation of client” w/o client’s consent
b.      Use confidential client information against the interests of a current/ former client
3.       Standard: reasonable care not to divulge information
4.       Client can consent to disclosure—consent can be express or implied
5.       Prospective clients
a.       Lawyer shall not reveal information learned in a discussion w/ a prospective client or use that information to the disadvantage of the prospective client (MR 1.18(b)).
                         ii.      Purpose of Rule:
1.       Promotes clear and frank attorney-client communication  
a.       We want the client to tell the lawyer everything since he does not necessarily know what is important & what is not—only lawyer can pick that out so client must be completely forthcoming
b.      Functional purpose à makes it possible for lawyer to do his job
2.       Client’s interest in autonomy
a.       Considers that the lawyer is merely an intellectual extension of the client, expanding upon the client’s own capacities
3.       It is the “right thing to do”
4.       Must balance with other interests
c.       EXCEPTIONS TO CONFIDENTIALITY
                           i.      Lawyer may disclose information when he reasonably believes it is necessary to accomplish one of these purposes:
1.       MR 1.6(b)(1): disclosure allowed to prevent reasonably certain death or substantial bodily harm
a.       Reasonably certain = harm would be suffered imminently OR there is a present & substantial threat that a person would suffer harm later if the lawyer didn’t take action to eliminate threat
2.       MR 1.6(b)(2): disclosure allowed to enable affected people or appropriate authorities to prevent the client from committing a crime/ fraud that is reasonably certain to result in injury to financial interests or property of another
a.       Potential crime needs to be in furtherance of which client used lawyer’s services
3.       MR 1.6(b)(3): lawyer allowed to disclose information relating to representation of client to the extent necessary to help people affected by an already-committed crime/ fraud to prevent/ mitigate reasonably certain losses or recoup them
a.       Already-committed crime needs to be in furtherance of which client used lawyer’s services
4.       MR 1.6(b)(4): disclosure allowed to help lawyer secure confidential legal advice about lawyer’s personal responsibility to comply with the Rules
5.       MR 1.6(b)(5): disclosure allowed to defend himself (lawyer) against the client or 3rd party; OR to prove services in action to get fee
a.       This exception applies when lawyer’s own interests are at stake
b.      POLICY:
                                                               i.      No guilt by association; protects lawyer from clients’ predatory conduct
                                                             ii.      Attorney does not have to wait for charges to be brought to reveal the information
                                                            iii.      Revealing information must be reasonably necessary for lawyer to protect himself
                                                           iv.      Privilege can be used to protect communications b/w attorneys & PR experts
                                                             v.      Inadvertent production of documents may waive privilege
6.       MR 1.6(b)(6): disclosure allowed when other law supersedes the rule
7.       MR 1.6(a): clients can explicitly or implicitly waive confidentiality
                         ii.      These provisions permit disclosure but don’t require it
1.       Lawyer has discretion, and may consider facts such as:
a.       The nature of the lawyer’s relationship with client & those who might be injured by the client
b.      The lawyer’s own involvement in the transaction
c.       Factors that might extenuate the conduct in question
d.      CONFIDENTIAL V. PRIVILEGED
                           i.      Confidential
1.       Confidential = ethically protected information
2.       Confidential client information gained from the client or from others in the course of representing the client, which, absent exception, a lawyer may never reveal unless doing so benefits the client
3.       Confidential communications can be subpoena’d (unlike privileged information)
                         ii.      Privilege
1.       Law of evidence
2.       Only protects communications between lawyer (or his agent) & client (or his agent)
3.       Privilege does not exist if a stranger is present during communications
4.       Privileged information is always also ethically protected
                        iii.      Policies
1.       Privilege & confidentiality will encourage clients to trust lawyers & to

other than the employee initiates the communication, a factual communication by a corporate employee to corporate counsel is w/in the scope of his employment & made to assist the lawyer in assessing/ responding to the legal consequences of that conduct for the corporate client
II.     LAWYER AND CLIENT ROLES
a.       AGENCY
                           i.      Lawyers are their clients’ agents
1.       Authority to act & speak for client on the subject matter of the retainer
                         ii.      Important to define what the attorney is retained to do:
1.       Need to know what attorney is retained to do to make sure that lawyer stays w/in scope of work the client gives her
2.       Protect the lawyer against a charge of neglect or malpractice
3.       Taylor v. IL (1988): to gain a tactical advantage, lawyer did not reveal the identity of a prospective witness. Court did not allow witness. Client claims inadequate counsel.
a.       Client sets the goal of the representation, & attorney sets the means
b.      Attorney’s decision was misconduct (b/c broke court rules), but was not inadequate
                        iii.      The conduct of an attorney is normally imputed to his client
1.       Allowing a party to evade the consequences of the acts or omissions of his freely selected agent would be wholly inconsistent w/ our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent
2.       SEC v. McNulty (1998): willful default of D’s attorney is imputed on D b/c D made no showing of diligence that would warrant relieving him of default judgment
b.      FIDUCIARY
                           i.      Fiduciary duty à lawyers must place their clients’ interests above their own in the area of the representation & must treat their clients fairly
                         ii.      POLICY for imposing fiduciary obligations:
1.       Client presumably begins to depend on attorney’s integrity, fairness, superior knowledge, & judgment, putting aside the usual caution when dealing w/ others
2.       Attorney may have acquired information about client that gives attorney an unfair advantage in dealings w/ the client
3.       Many clients will not be in a position where they are free to change attorneys; rather they’re financially & psychologically dependent on attorney’s continued representation