I. Elements of Client-Lawyer Relationship
i. Rule 1.6
· Lawyer shall not reveal info w/o Client’s informed, written consent or as reasonably necessary:
§ To prevent reasonably certain death or substantial bodily injury;
§ To secure legal advice for Lawyer;
§ To establish a claim or defense on behalf of Lawyer;
§ To comply with court order;
§ To prevent fraud or financial harm arising from the use of the lawyer’s services.
o This may also be used to reveal confidences that can “rectify” after the fact.
· Lawyer may break confidence where impliedly authorized in order to carry out the representation.
§ Need to promote open communication b/w attorney and client and don’t want the client to hold back any information for fear of what may happen with such info.
o “Long black veil”
§ Client Autonomy is promoted
o Provide the service of lawyering knowledge w/o taking any right to be able to use the information gained for any purpose other than the client.
· CA § 6068(e)
§ Permits lawyer to reveal confidences only if to prevent a criminal act reasonably certain to cause substantial bodily harm.
§ DOES NOT permit revealing confidences about fraud or financial harms.
§ DOES NOT permit revealing confidences to defend lawyer against claim brought by client or state (either civil or criminal).
ii. Attorney-Client Privilege in Entity Context
· Attorney represents the organization and not the individual members of the entity.
§ However, need to identify who in the organization is capable of asserting privilege on behalf of the organization.
· RULE: The scope of privilege extends to persons based on the “Subject Matter Test,” which looks to five factors: (Upjohn test)
§ Communication is made for the purpose of giving or receiving legal advice;
§ Employee who is communicating with attorney is doing so at direction of a superior;
§ Direction is given by superior to obtain legal advice for the corporation;
§ Subject matter of the communication is within the scope of the employee’s duties;
§ Communication is not disseminated beyond those persons who need to know.
iii. Perez v. Kirk & Carrigan, p.24
iv. Upjohn v. US, p.32
v. Samaritan Foundation v. Goodfarb, p.35
vi. Exceptions to Privilege or Ethical Duty
· Collection of Fees
· Crime-Fraud Exception
· Future Crimes or Frauds
· Noisy Withdrawal
· Identity and Fees
i. Taylor v. Illinois, p.57
· Facts: Taylor’s attorney, unbeknownst to Taylor, willfully violated a discovery rule with respect to naming a witness and the court precluded the witness from testifying as a result. Client argues that he should not be held in harm due to his lawyer’s misdeeds.
· Holding: Court binds Taylor to his lawyer’s actions under Agency law, whereby his lawyer acts with full authority to bind Taylor.
§ Court cites many of the reasons for agency relationships as justification:
o Efficient for the attorney to act w/o verifying every step w/ client
o client agrees to have lawyer represent him in full capacity
o any miscalculation by attorney often is only made evident in hindsight, etc.
§ Argues that lawyer should act as agent in most cases, but client should not be bound for lawyer’s misconduct, as occurred in this case.
ii. Cotto v. US, p.59
· Court holds that “the acts and omissions of counsel are customarily visited upon the client in a civil case.”
§ However, agrees that the lawyer’s failure to properly handle the case (leading to a dismissal of the case for failure to prosecute) deserves disciplinary action.
§ Also, client still has potential action directly against the attorney (e.g., malpractice, etc) but has lost the right to his actual civil lawsuit.
iii. Vicarious Admission
· Lawyer’s statements made during representation may be considered a vicarious admission on the part of the client.
§ However, client has ability to disown or introduce contrary proof to such admissions.
i. Reasons for imposing fiduciary obligation on lawyers once relationship is created:
· Client depends on lawyer’s integrity, fairness, superior knowledge, and judgment;
· Attorney may acquire information about client giving him an unfair advantage in dealings between them;
· Client may not be able to freely change att
tion w/o violating confidential information.
§ Indigent persons MAY NOT fire their attorney but may request a new lawyer.
ii. By the Lawyer
· Rule 1.16 & DR 2-110
iii. By Drift
II. “No Contact” Rule
a. Rule 4.2
i. In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in this matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
ii. NOTE: Only the other attorney can waive this; a client cannot waive this rule.
i. The rule protects a person who has hired an attorney from coercion by another attorney and from accidently revealing information related to the representation to opposing attorney.
c. Entity Context
i. Neisig v. Team I, p.93
· RULE: <<see last full paragraph on p. 95 for the majority No-Contact rule>>
· The scope of protected persons with whom contact is disallowed:
§ Those whose act/omission gives rise to the liability
§ The “control group,” including directors, executives, senior managers, etc.
III. Concurrent Conflicts of Interest
i. Concurrent conflicts and loyalty to each party or to self
ii. Successive conflicts: To what extent is loyalty due to terminated relationship w/ former client
iii. Imputed or vicarious conflicts from one lawyer to other lawyers in the firm
iv. Advocate-witness conflicts: Lawyer called to be witness by client or adversary
v. Which ethics rule of law applies: state-to-state; state-vs-federal, etc
vi. Narrow vs Broad rules affecting size of firm, number of clients, trust of client relationships.
b. Client-Lawyer Conflicts