I. Overview (class 01/15)
a. RPC 1.6- a rule of professional conduct
i. come from an ABA committee (collective process that also involves arguing both sides of an issue), and then each state adopts their own version
b. The Rule: 1.6: Confidentiality of Information
i. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
ii. (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
1. (1) to prevent reasonably certain death or substantial bodily harm;
2. (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
3. (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
4. (4) to secure legal advice about the lawyer’s compliance with these Rules; (i.e. covering your own ass)
5. (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; Or
6. (6) to comply with other law or a court order.
c. Section a
i. lawyer nondisclosure
ii. comments are included as commentary by the committee to explain why the rule is the way it is.
d. information includes
i. confidences- (something said by your client to you)
1. so don’t disclose what your client says to you.
ii. also, work product is information, so not disclosed.
iii. also, “secrets” are not to be disclosed (ex. things discovered by an investigator)
e. purpose of rule 1.6 (look at comment 2- this is a fundamental principle) is to protect information in a relationship that involves trust, i.e. attorney/client
i. [2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent.
ii. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct.
iii. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
f. informed consent- rule 1.0(e)
i. (e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
ii. imp
iii. acknowledges role differentiated behavior- your client is all that matters to you.
iv. owe a duty to your client greater then the one you owe to yourself, but his statement is qualified- cant do so by committing a crime yourself.
e. Atkins case and RPC 1.6 revisited
i. mentally retarded ppl cannot be executed and under Virginia law, only the triggerman is eligible for the death penalty.
ii. question of atkins retardation left open, if not retarded—death eligible.
iii. attorney smith’s problem (co-defendant’s counsel): had to keep a secret, requested to do so by the prosecutor—his client gave inconsistent testimony saying that atkins was the trigger man.
iv. co-defendant was coached and then taping was restarted.
1. so smith should have disclosed that his client was coached- jury has the right to know and defendant’s counsel should be given it to use it.
v. RPC 1.6 (different from VA rule)
1. don’t disclose client’s secrets, like his being coached.
2. so what is the tension?
a. Should tell the truth b/c truth telling is valued, But authorities told him to not say anything b/c of duty to his client.
vi. VA bar said he was bound not to bring up the matter, but then later changed that determination.
under model rules, in smith’s situation, he is not required but is permissible to come forth.
