PROFESSIONAL RESPONSIBILITY OUTLINE
INTRODUCTION
Professionalism
Requires intellectual training & use of complex judgments
Clients can’t evaluate quality of service – must trust those they consult
Trust presumes self-interest of practitioner is subordinate to client’s interest and public good
Self-regulation to achieve competence, fidelity to client and overcoming self-interest
Ramifications
Professional discipline, disbarment
Rule 11 sanctions
Disqualification from representation
Lawsuits (civil liability, malpractice) to clients and 3rd parties
Criminal liability
Loss of fee
Bad publicity
ATTORNEY/CLIENT RELATIONSHIP
How is it formed
Explicit agreement
i. retainer – addresses nature of representation, fees, confidentiality, termination, arbitration, liability, etc.
Implicit agreement-Conduct, words, education, etc.
i. person manifests to lawyer intent that lawyer provide legal services;
ii. lawyer fails to manifest lack of consent to do so; and
iii. lawyer knows/reasonably should know that person reasonably relies on lawyer to provide services
iv. note: requires sophistication on behalf of attorney
Competency: (low bar)
ABA RPC 1.1àA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
NJ RULEàA lawyer shall not:
i. (a) Handle or neglect a matter entrusted to the lawyer in such manner that the lawyer’s conduct constitutes gross negligence.
ii. (b) Exhibit a pattern of negligence or neglect in the lawyer’s handling of legal matters generally.
Amen VI of Conà“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence”
i. note: reasonable lawyer standard reflected in Constitution
Bases for A/C Relationship
Fiduciary Duty
Agency
Attorney-Client Privilege
Rule of Professional Conduct on Confidentiality 1.6
Attorney Work Product Doctrine
CHAPTER 2: WHAT DO LAWYERS OWE THEIR CLIENTS
Confidentiality vs. Attorney/Client Privilege: (RULE 1.6)
EXAM ANALYSIS
i. does the A/C Privilege apply?
ii. Does RPC 1.6 apply?
iii. Do any exceptions apply?
Confidentiality RPC Rule 1.6: (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).
i. reasons for rule: Encourages Candor; client’s privacy; Professional Identity
ii. hypo: person shows up at office and asks to be lawyer. says they’ve killed someone. lawyer says im not going to represent you. confidential? yes
1. practical; quasi-client; need to know facts of case to decide whether to take the case. would be unfair to client if they had to take that risk
Perez v. Kirk & Carrigan
i. Perez is driver of truck of CC; said brakes failed; lawyers for K&C repping coke showed up. attorney’s said they were his attorney. K&C argue that Perez never sought legal advice.
ii. HOLDING: implicit agreement
1. K&C informed him that communications would be confidential
2. court looks to conduct of parties
3. note: payment of a fee is irrelevant
Attorney/Client Privilege
requires communication between attorney and client**
1) Where legal advice of any kind is sought
(2) from a professional legal adviser in his capacity as such,
(3) the communications relating to that purpose,
(4) made in confidence
(5) by the client [or by lawyer],
(6) are at his instance permanently protected
(7) from disclosure by himself or by the legal adviser
(8) except the protection may be waived.
i. hypo: designate paralegal to talk to client: protected?
1. yes, paralegal is an agent for lawyer
2. investigator; clinic as a student; viewed as an agent for lawyer’s office
ii. hypo: send out paralegal to talk to third party (mark), not the client, is that protected by AC priv? NO,communication msut be between client and attorney
Attorney/Client Privilege
RPC 1.6
•Narrow
•Communications between lawyer and client
•Communications made in confidence
•Stronger – a shield; may be asserted to withstand subpoenas, court orders
•Source – rules of evidence
Survives forever
•Very broad
•“Information relating to representation”
•Information need not come from client
•Cannot overcome a court order
•Governs all aspects of representation regardless of fora; preventive
•Source – rules of professional conduct
Survives forever
Inadvertant Disclosure of Confidentiality
hypo: “mark told me she was driving a blue car”. statement is in the news as well
i. relates to representation; could be intenuated
hypo: professor gives hypo about client leaving scene of accident
i. no, it’s a “hypo”
hypo: EMAIL; inadvertentàattorney sent email to NY times instead of client;
i. note: email may say its confidential; judge reemed out reporter, had no business and should have sent it back; client could have arguably brought suit
hypo: attorney knew someone else killed the victim, accused was sentenced to prison. were lawyers correct in keeping information confidential?
Information also available to the public
Most commentators think it would be absurd to read it this way but see . . .
i. Brennan’s Inc. (page 36)
iv. Lawyer sues own firm for retaliatory discharge or illegal discrimination
Waiver
a client can waive confidentiality and privilege
waiver my be explicit or implicit
can be inferred when clients puts the confidential communication at issue in the litigation
Revelation of all or part of confidential communication
hypos:
i. ex/ white case: priv not waived when a D denied criminal intent
ii. MIT case: voluntary choice to provide documents to Department of Defense waived privilege
iii. Alan Dersowitz: wrote bookàheld waiver as to the “particular matters actually disclosed in the book”***àfairness: they weren’t gaining any tactical advantage…
“need to know” Corporate Employees
In order for the privilege to extend to certain employees,
i. person who receives legal advice must bear some responsibility concerning the issue being discussed;
ii. Legal advice must be intended to be kept confidential
iii. can’t be disseminated beyond those with a need to know, which considers
1. (i) role of employee; and (ii) nature of communication, whether it incorporates legal advice
prof: if someone in corp provides legal advice, and the employees within the corp discuss it, why is it not waived?
i. just makes sense on fact basis
ii. “some people don’t need to know the reason, just do it”
automobile hypo: if an auto manufacturer is attempting to remedy a design defect
i. VP/Engineer communications are protectedàdialgogue so that lawyers can understand the practical constraints
ii. autoworker on assembly lineàno need to be advised of the legal basis for a change in production
iii. *focus on who needs to know the legal background
Crime-Fraud Exception
note: exceptions deal with future crimes
A/C Privilege: applies to any communications between an attorney and client that are intended to further a continuing or future crime or tort.
i. regardless of whether the crime or fraud is committed
