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Legal Profession
St. Louis University School of Law
Wolff, Michael A.

Legal Profession


Spring 2012

I. Secrecy

A. Three general Rules

i. Ethical Obligation of Confidentiality (Model Rules/Ethics) à prevents atty from volunteering what they know about a client or client’s issue no matter the source

ii. Atty/Client Privilege (Evidence) à prevents atty from being compelled to tell what they discussed (orally or in writing) with clients

iii. Work Product Immunity (CivPro 26(b)(3)) à prevents lawyers from being compelled to reveal written info created for purposes of litigation

B. Duty of Confidentiality

i. Rule 1.6: Confidentiality of Information

1. (a) Lawyer may not reveal info relating to rep of cline UNLESS

a. client gives informed consent

b. disclosure implicitly authorized in order to carry out the representation

c. disclosure permitted by 1.6(b)

2. (b) Lawyer may reveal information relating to the rep of client to extent lawyer reasonably believes necessary to:

a. (1) prevent reasonably certain death or substantial bodily harm

b. (2) prevent client from committing crime/fraud that’s reasonably certain to result in substantial injury to financial interests or property of another, AND in furtherance of which client has used/is using atty’s services

c. (3) prevent, mitigate or rectify substantial injury to financial interests or property of another from client’s commission of crime/fraud which he used atty’s services to commit

d. (4) secure legal advice about lawyer’s compliance with these rules

e. (5) est. a claim or self-defense in controversy b/t lawyer and client; est. a defense to criminal charge or civil claim against lawyer based upon conduct in which client was involved, respond to allegation in proceeding concerning lawyer’s rep of client or

f. (6) comply w/other laws or a court order

ii. Analysis:

1. Is person a client? Ask:

a. Does person believe he or she is my client

b. If YES à is that belief reasonable in light of all circumstances

c. Representing a corp. – do their officers think you rep them too

d. Trade association – do members think

e. If you do not clearly reject a person’s case that they present

f. You finish working for a client but don’t tell them relationship is over

C. Atty/Client Privilege

i. 5 C’s – When Privilege applies (all essential):

1. client

2. communications

3. Confidentiality with

4. Counsel (lawyer acting as lawyer)

5. to obtain Counsel (legal advice)

ii. When privilege does NOT apply

1. Waiver

a. Client/lawyer intentionally/unintentionally reveals information

i. Unintentional à Ct will look to see if reasonably adequate steps were taken to protect privilege

b. Selective waiver does NOT apply

c. Change in corporate management allows different people to reveal info

2. Crime-Fraud Exception à client’s intent to commit a crime or fraud, not on Atty’s knowledge of the fraud

3. Joint Clients exception – if rep-ing two clients who later decide to sue each other, once one uses privileged information against the other all privilege is waived

4. Advice of counsel defense à when client puts advice of lawyer at issue, waives privilege relating to advice

5. 1.6(b)(5) Lawyer’s self-defense exception à lawyer may disclose info in self defense; client waives by attacking lawyer

a. Respond as reasonably narrow as possible to establish a claim or defense (if not sued by client seek confidentiality orders)

iii. Continues after Atty/Client privilege ends – end of representation

iv. Continues after death of client (so does atty/client privilege

1. UNLESS – state law places executor in shoes of your client

D. Work Product Doctrine – Fed.Rul Civ Pr Rule 26 – Civil Cases

i. Research, notes from witness interviews, legal strategy memos

ii. Hickman v. Taylor à two categories of WP 1) ordinary, and 2) opinion

iii. Ordinary Work Product à info recorded by atty/atty’s client/ atty’s agent in anticipation of litigation or in prep for trial

1. records kept in ordinary course of biz à prob not

2. Discovery allowed if two are satisfied:

a. “substantial need” in prep of their case

b. Party is unable w/out “undue hardship” to get “substantial equivalent” in another way

iv. Opinion Work Product à mental impressions, conclusions, opinions, or legal theories

1. court MUST protect against disclosing this, even if above exceptions shown, unless it is waived

v. Experts à reports, opinions, or other work product generated by

1. Trial experts à may be deposed by opposing and must send report of his opinion and basis for it

2. Consulting Expert à discovery only allowed under showing of exceptional circumstances where it is impracticable for party seeking discovery to obtain opinion or facts on same subject

vi. Tangible v. Oral communication à generally only tangible

vii. Witness statements

1. Vary by jurisdiction

2. Your notes about what witness told atty are protected

E. Work Product – Criminal Cases – Fed. R. Crim. P. 16(b)

i. Generally à no discovery or inspection of documents made by D or representation in connection w/investigation or defense of case except for scientific or medical reports

ii. 16(a) à same protection for gov’t if they are an interested party

iii. 5th Amend. Privilege against self incrimination prevent compelling lawyer to turn over work product notes incriminating client

II. Physical Evidence

A. Attny ordinarily is not required to reveal information that will help police officers solve crimes. Physical evidence like guns and stolen goods are exceptions – lawyers who possess and control physical evidence of a crime ust turn it over to prosecutors

B. Civil Cases

i. Narrow automatic disclosure or formal request

1. Civil investigative demands (gov’t)

2. Subpoenas

3. Discovery Request

ii. Ethical duty of Conf. requires you to assert privilege or wk product when either could prevent disclosure. Client may waive AFTER you have explained advantages and disadvantages

C. Criminal Cases

i. May be required to turn over certain evidence (i.e. murder weapon) others may hold onto unless formally requested

1. Statutes à may require automatic turning over of physical evidence of crimes in their possession

2. Subpoenas

3. Ethics à MRPC 3.4(a): may not unlawfully destroy, alter, or conceal evidence of material value.

4. Discovery Request

ii. Atty/Client privilege prohibits telling authorities information about the evidence à don’t have to talk about what evidence shows, or how you obtained it

1. if it applies may only tell WHERE evidence was originally located, if you altered it after receiving

III. Examples

A. Phone message from potential client, written down by secretary

i. Privileges Applies à work done by atty’s personnel in carrying out necessary legal work; seeking legal advice

1. BUT à does he reasonably think that he is your client

ii. Note pad w/message à if done in anticipation of litigation then WkPrdt applies

B. Letter addressed to atty received by potential client, never met with

i. 1.6 Duty à YES – in order to give legal advice you learned info

ii. Privilege à YES; lawyer may not be deposed – lawyer need not already be retained, if retained later

C. Conversation w/potential client regarding accident

i. WkPrdt à NO – must be a document

ii. Privilege à YES

D. Draft of letter addressed, but never sent to other driver

i. NO protection – intention of client at time he sat down to write was NOT to preserve recollection for litigation or to give to atty to obtain legal advice

E. IF you decide not to take the criminal part of case

i. May NOT tell another atty why you decided to turn it down

F. Attorney notes takes during interview

i. BOTH WPI and Atty/Client privilege à even if turning down criminal part of case, or if you don’t work for him at all

G. Conversation with witness

i. Privilege does not apply as to the witness b/c he’s not your client

ii. IF atty says he c

4 Fairness to Opposing Party and Counsel – A lawyer shall not:

(a) “Unlawfully” obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. Lawyer shall not counsel or assist another person to do any such act

i. “unlawfully”: means depends on whether the lawyer is subject to state or federal law, and whether the materials have been subpoenaed

1. State law à may be crime to destroy physical evidence before subpoena is issued

2. Federal Law

– After subpoena intentional destruction à obstruction of justice or criminal contempt

– Before subpoena only a crime if: 1) docs relevant to pending investigation, and b) destroyed w/corrupt or evil intent

B. Kinds of physical evidence

i. Testimonial evidence: attny may not facilitate perjury

ii. Tangible evidence

1. Attny may not falsify the same

2. Defense lawyers who take possession of evidence, must turn it over to the prosecution

III. CASE: People v. Merideth

A. Fact: attny obtained the whereabouts of critical evidence from his client. He dispatched an investigator who removed the critical evidence from its original place. The attny eventually turned it over to the prosecution. The prosecution subpoenaed the investigation to question him about the evidence.

B. General rule: the communications btw counsel and his investigator are protected by the privilege

i. The investigator’s knowledge of the location was a result of such communication thus is protected

C. Holding: the attny-client privilege does not protect from disclosure testimony regarding observation made by counsel or his agent concerning evidence which has been removed by counsel or the agent.

D. Rationale:

i. Info sought to reveal is not about the investigator’s knowledge of the location; but the original state of the evidence (investigator in fact removed the evidence)

ii. If counsel or his agent had moved or altered the evidence, the opportunity of the prosecution to observe it is forever lost

iii. Not disclosing about the original state of the evidence would effectively permit to destroy critical evidence

iv. Removal or alteration = waiver of privilege as to condition and location

E. Other scenarios

i. If attny did not turn the wallet in but kept it then it would have been violation of ethical duty (most of time violation of law)

ii. Info that you collect in preparation of litigation is attny’s work product

IV. Consequences of Destroying

A. Tort: Spoilation – Intentional or Negligent

i. Bad faith NOT required

ii. Only need willful act and some degree of knowledge that evidence was relevant to pending litigation

B. Litigation Sanctions

i. Dismissing answer

ii. Precluding introduction of evidence about condition of destroyed evidence

iii. Ordering monetary sanctions paid to other party

iv. Entering default judgment against destroying party

V. CASE: Mosaid Tech. v. Samsung

A. Fact: after commence of patent litigation, Samsung unchecked its existing automatic computer policy of deleting e-mails on a rolling basis and failed to produce any email on discovery.

B. Four Factors for Spoilation

i. Evidence in party’s control