Class 1 – January 15, 2009
Lawyer-Client Relationship
Test – person claiming to be a client might reasonably believe, under the circumstances, that there is a lawyer-client relationship, and on the basis of this assumption, gave the lawyer confidential information.
Rule 1.1 – Lawyer shall (must) be competent.
Competence – knowledge, skills, thoroughness, preparation reasonably necessary.
i. No requirement of specialization.
Incompetence – rule of reason, not specifically defined.
Confidentiality
Rules of confidentiality apply to law students working for firms and in a clinic.
Confidentiality is undefined – information relating to the representation from any source
Privileged and Ethically Protected
All privileged matter is ethically protected; not all ethically protected is privileged.
Privilege
Ethically Protected
a/k/a
“Confidence”
“Secrets”
Source
Evidence
Model Rules
What
What client communicates to lawyer if in info contained in confidential communication and the privilege was not waived. Does not protect underlying facts, only communication to lawyer.
Can’t ask the lawyer what the client told him.
Can ask specific facts.
Info relating to representation of the client.
Who Supplies
Client
Anyone
Effect
Court can’t order disclosure.
Court can order disclosure.
Cons. of Disclosure
Tort suit
Tort Suit, discipline
Effect of disclosure on 3rd party
Can be waived, priv. is gone.
Info stays confidential.
Rule 1.6 Confidentiality of Information
(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).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (six exceptions)
(1) to prevent reasonably certain death or substantial bodily harm;
(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) 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) to secure legal advice about the lawyer’s compliance with these Rules;
(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) to comply with other law or a court order.
Perez
Facts:
Driver for Coca-Cola Co., brakes failed, he rear-ended a bus, knocked it into a pond and people drowned.
Two lawyers from Coke came to see Perez in the hospital, he thought they were his lawyers and gave them a confidential statement. They turned the statement over to the state.
Allegation:
Breach of fiduciary duty and good faith and fair dealing.
Defense:
No fees discussed, not retainer agreement signed or discussed, Perez did not ask them to be his lawyer.
Discussion:
Fee not necessary, absence of fee does not prove lack of relationship.
If there is no lawyer-client relationship, then no duty of confidentiality.
There will not always be a physical or financial consequence for the breach of trust so damages are presumed.
The two lawyers should have expressly told him up front that they were not his lawyers, and maybe even had him sign a written waiver that said that he understood.
Holding:
Dispositive fact was the fact the Perez gave the lawyers confidential information.
Dispute over whether a lawyer-client relationship existed à no summary judgment, must go to trial.
Lawyers cannot represent two masters à cannot represent Coke and Perez at the same time.
Rule:
A lawyer may breach his fiduciary duty to his client either by wrongfully disclosing a privileged statement or by disclosing an unprivileged statemebt after wrongfully representing that it would be kept confidential
HIV
Facts:
K was dating A, lawyer had represented A before. K got in a bar fight and was in jail.
A paid for the lawyer representation.
K told lawyer that he was HIV positive, asked him not to disclose to A.
Motion was to get K out on bail.
Discussion:
Does not matter who pays the lawyer bills.
i. Does not matter that money exchanged hands
ii. Solution: tell payer that the client it the person the lawyer represents, not the person paying.
HIV info confidentiality à ethically protected à cannot disclose.
i. 1.6(b) exceptions (lawyer can disclose):
1. “prevent substantial bodily harm”
a. Must be imminent.
ii. Lawyer may disclose; does not have to à could choose not to talk and not be disciplined.
Solutions:
i. Lawyer may withdraw – 1.16
Well Problem
Attorney does real estate transactions.
Client: Sellers.
House is being built and they’re having it inspected but there was a problem with the well – we didn’t realize there was a problem with the well until the papers were filed – what does Ben, the sel
conducted interviews instead as counsel as long as they were acting on behalf of counsel.
Parties Interviewed:
i. Max (head of maintenance) – Upjohn à privileged; control group à maybe privileged.
ii. Tim (waxed floor) – classic employee, in control group (NJ protection), Upjohn (employee) à protected for both.
1. When question the employee and you represent the employer, you do not represent the employee but the communications are confidential.
iii. Tina (sales person) – Upjohn à privileged (debatable); control group à not privileged.
iv. Rex (off-work, in the store shopping) – control group à not privileged (debatable); Upjohn à probably not privileged.
v. Delia (former maintenance employee) – Upjohn à probably privileged (Upjohn covers former employees); control group à not privileged.
vi. Ed (pres. of co. that supplied wax) – Upjohn à no protection; control group à no protection. Probably attorney work product protection.
vii. Angie (customer) – Upjohn à no privilege; control group à no privilege.
viii. Rivera (president of wax company) – Upjohn à no privilege; control group à no privilege
Duty of Competence
MRPC 1.3
Duty of competence
Knowledge, skills, thoroughness and preparation
No requirement of specialization under model rules but if you do advertise yourself as a specialist, you’ll be held to a higher standard
Breach
Not negligence, not failure to achieve client’s desires
This is an egregious error or patter of negligence
Incompetence isn’t necessarily malpractice
i. For malpractice you have to have error that reasonable attorney wouldn’t have made, plus damages
To avoid incompetence:
Don’t be greedy
Turn down work if you cant handle it or associate yourself with a competent lawyer
1.1 and confidentiality (1.6) mesh – these two rules act together
i. a lawyer must act competently to protect the inadvertent disclosure of confidential information (comment 16 to 1.6)
Scope, Decision Making (Rule 1.2)
1. Whose decision is it to settle in a civil case? à Client
If client say he won’t settle for anything less than a certain amount, the lawyer should use best judgment, anything close should be disclosed to client even if less.
Get it in writing.
2. 1.2 Scope
a. the client decides the ends, the lawyer decides the means
b. comment 1 says you SHOULD, but you don’t HAVE TO consult about all decisions, especially when it will cost the client money – be sure to communicate
i. 1.4 communications rule:
1. 1.4(a)(2) – reasonably consult with client about means
2. reasonable defined as matter of feasibility and importance of the matter
