PROFESSIONAL RESPONSIBILITY
MOUZON
FALL 2012
1. Defining the attorney-client relationship (1.0, 1.1, 1.2, 1.3, 1.4, 1.6)
a. Is there a client here?
i. An attorney-client relationship is found when: (1) a person manifest to a lawyer the person’s intent that the lawyer provide legal services for the person; and…(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.
ii. Even when a client-lawyer relationship is established, it almost always has a finite scope, as do principal-agent relationships generally. Courts will expect the lawyer to be sensitive to, and to clarify, any ambiguity.
1.18 – duties to prospective clients
1.8(f) – conflict of interest
5.4(c) – professional independence of a lawyer
1.13(f) – organization as client: 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.
4.3 – transactions with persons other than client – dealing with unrepresented person
b. What do lawyers owe clients?
i. Competence (1.1)
ii. Confidentiality (1.6)
1. Perez v. Kirk & Carrigan
a. A lawyer may breach his fiduciary duty 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.
2. Privileged information and ethically protected information: what is the difference?
3. Policy behind the privilege and confidentiality rules
4. Entity clients
5. Upjohn co. v. United States
a. The attorney-client privilege between a corporation and its counsel extends to communications between counsel and noncontrol-level employees.
6. Samaritan Foundation v. Goodfarb
a. An employee’s communications to corporate counsel are within the corporation’s privilege if they concern the employee’s own conduct within the scope of her employment and are made to assist the lawyer in assessing the legal consequences of that conduct for the corporation.
b. Client communications tend to fall into two categories: those initiated by the employee seeking legal advice and those made in response to an overture initiated by someone else in the corporation.
7. Is there a Government attorney-client privilege?
a. Much authority seems to suggest that the government, as an entity client, enjoys the same protection for conversations between its lawyers and its agent as Upjohn bestowed on corporations
8. Exceptions to the privilege or the ethical duty
a. Self-defense and legal claims
i. Rule 1.6 and several cases recognize that a lawyer’s right of self-defense applies whether charges against the lawyer are made by the client or third parties.
ii. Meyerhofer v. Empire Fire & Marine – Goldberg had been an associate in a law firm when the firm handled a registration statement for a client. The firm rejected Goldberg’s view that certain information omitted from the statement had to be revealed. Goldberg quit and gave the SEC a detailed affidavit about the episode, with supporting documents. Three months later Goldberg was named as one of a number of defendants in a civil action arising out of the registration statement. In a successful effort to extricate himself from the civil action, he gave info, including the SEC affidavit, to the plaintiff’s lawyers. In ruling on a motion to disqualify the plaintiff’s lawyers for receiving the info, the second circuit found Goldberg’s conduct proper.
iii. The self-defense exception is circumscribed by a rule of reasonable necessity. A
.6(b)(1) permits lawyers to reveal confidences to prevent death or substantial bodily harm, whoever is the actor and even if there is no crime.
iii. 1.6(b)(3) permits a lawyer to reveal confidential info “to prevent, mitigate or rectify” substantial financial harm “that is reasonably certain to result or has resulted” from a client’s “crime or fraud in furtherance of which the client has used the lawyer’s services.”
g. The “Fiduciary” exception
i. A beneficiary is entitled, on a proper showing, to communications between a fiduciary, like a trustee, and counsel for the fiduciary on the ground that the lawyer’s ultimate client is the beneficiary, not the fiduciary.
h. Noisy withdrawal
i. When a lawyer must withdraw from representing a client because of criminal or fraudulent behavior, the lawyer may be allowed or, to avoid assisting the fraud, legally obligated to alert others that she also retracts any oral or written representation that she may have made and which the client may still be using for the illegal purpose. The retraction is what makes the withdrawal “noisy.” A noisy withdrawal is not actually a full-blown exception to confidentiality because the lawyer says only that she retracts something she previously said or wrote.
i. Identity and fees
i. Prosecutors or civil adversaries will seek to learn a client’s identity, the source of legal fees, the amount of the fees, and other information about the representation not involving “communications.” Assertions of privilege in response to these efforts are generally unsuccessful.
