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Legal Profession
St. Louis University School of Law
Needham, Carol A.

LEGAL PROFESSION
Needham- Spring 2010
 
I. Secrecy (Ch. 6)
A. General Rules Governing Lawyers
          1. Sources of Governance
                        a. The court’s inherent power
                                    i. Judicial control/sanctions[N1] 
                        b. Disciplinary Rules
                                    i. State-by-state regulation
                                    ii. Model rules are just that—they are not required and not uniformly
                                        adopted in every state unless explicitly done so by highest court.
                                    iii. ABA contributes to formation of rules.
                        c. Statutes
                                    i. Federal and state both exist. Federal often deal with particular actions,
                                       while state commonly deal with UPL or local issues
                        d. Common Law Duties
                                    i. Malpractice (Tort)
                                    ii. Fee Disputes (Contracts)
                                    iii. Violations of Fiduciary Duties (Agency Law)
B. Secrecy Provisions
          1. Three General Rules of Secrecy[N2] 
                        a. Duty of Confidentiality (can’t voluntarily reveal)
                                    i. The Duty of Confidentiality encompasses the other two rules.
                                                A, Work Product and privilege form a kind of venn diagram within
                                                     confidentiality.
                                    ii. Doesn’t apply if statute/court rules/court order require you to disclose.
                                    iii. Only reason you can refuse to testify/give interrogatory answers.
                        b. Attorney-Client Privilege (can’t be compelled to tell)
                                    i. Protects the communications b/w Attorney and client.
                        c. Work Product Immunity
                                    i. Protects mental impressions/thoughts/ideas of those litigating
            2. Duty of Confidentiality
                        a. Model Rule 1.6
                                    (a) Lawyer may not reveal info relating to representation of client
                                          UNLESS
                                                -client gives informed consent
                                                -the disclosure is implicitly authorized in order to carry out
                                                 the representation
                                                -disclosure is permitted by 1.6(b)
                                    (b) Lawyer may reveal information relating to the rep of client to                                                     extent lawyer reasonably believes necessary to:
                                                (1) prevent reasonably certain death or substantial bodily                                                                 harm
                                                (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
                                                (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
                                                (4) secure legal advice about lawyer’s compliance with these                                                          rules
                                                (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
                                                (6) comply w/other laws or a court order
                        b. Duty of Confidentiality only exists if the person is a client. How tell that?
                                    i. Does the person believe that they are your client?[N3] 
                                    ii. Is that belief reasonable in light of the circumstances
                                    iii. If representing a corporation—do the officers think they’re represented
                                        as well?
                                    iv. Trade Association? Do members think they’re represented?
                                    v. Did you fail to clearly reject a presented case?
                                    vi. You finish work but fail to tell a client your time is done.
            3. Attorney-Client Privilege (see Section II.A)
                        a. Only Applies When the 5 “C”s are present
                                    i. Client
                                    ii. Communicates
                                    iii. Confidentially with
                                    iv. Counsel
                                    v. To Obtain Counsel
            4. Work-Product Doctrine
                        a. Civil Cases (FRCP 26)
                                    i. Comprises Research, notes from witness interviews, legal strategy
                                       memos, any item of work sprung from the mind performing the case.
                                    ii. Hickman v. Taylo[N4] r  two categories of WP 1) ordinary, and 2) opinion
                                                A. Ordinary Work Product: 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 — prob not.
                                                            2. Discovery only allowed of WP items if two things are
                                                                satisfied:
                                                                        a. “substantial need” of material to prepare case
                                                                        b. Party is unable w/out  “undue hardship” to get
                                                                            “substantial equivalent” in another way
                                                B. Opinion Work Product: mental impressions, conclusions,
                                                   opinions, or legal theories
                                                            1. Court MUST protect against disclosing this, even if
                                                                above exceptions shown, unless it is waived
                                    iii. Experts:
                                                A. Reports, opinions, or other work product generated by experts
                                                    may be protected depending on the circumstances
                                                            1. Trial experts: May be deposed by opposing and must
                                                                send report of his opinion and basis for it
                                                            2. Consulting Expert: Discovery only allowed under
                                                                showing of exceptional circumstances where it is
                                                                impracticable for party seeking discovery to obtain
                                                                opinion or facts on same subject.
                                    iv. Types of Evidence Covered
                                                A. Generally only tangible (non-oral) communications
                                                            1. Your notes about what witness told atty are protected
                        b. Criminal Cases – Fed. R. Crim. P. 16(b)
                                    i. No discovery or inspection of documents made by Δ or representation
                                       in connection w/investigation or defense of case except for scientific or
                                       medical reports[N5] 
                                    ii. 16(a): same protection for gov’t if they are an interested party
            5. Problems p. 81       
        A.    Question 1: 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.    Question 2: 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.    Question 3: Conversation w/potential client regarding accident
                    i.    WkPrdt à NO – must be a document
                   ii.    Privilege à YES
        D.    Question 4: 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.    Question 5(a): 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.    Question 5(b): Attorney notes takes during interview-protected
                    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.    Question 6: Conversation with witness
                    i.    Privilege does not apply as to the witness b/c he’s not your client
                   ii.    IF atty says he can’t answer witness’ legal questions then clear there is NO atty/client relationship
        H.    Question 7: Conversation w/H nurse involved
                    i.    WPI à note taken from convo
                   ii.    Privilege à NO, she’s not client
                            1.    Facts discussed remain discoverable – what happened, but what she said in convo w/lawyer IS privileged
          I.    Client showed nurse letter to other driver
                    i.    Waives atty/client privileges as to the letter
         J.    Question 8: Objectionable Interrogatories
                    i.    # of lawyers called to take the case; did they refuse? Reasons why?
                            1.    may allow yes/no answers but not reasons
                   ii.    What did you tell your atty about accident = privileged
        K.    Question 10: Settlement discussion à requires some revelation. Lawyers are implicitly allowed to make some disclosure as part of settlement negotiations.
      L.   Question 11: Closing Argument
            -How much can you say during Closing? Obligation of candor says come forward. Duty
             of confidentiality says withhold? Argue the testimony. Argue “He said that he had to         wear special glasses, and he said that he didn’t wear them.” Address the testimony,        leave jury up to conclusions. Candor to the tribunal trumps the duty of confidentiality.
      M. Question 12: Medical Records
            -Must fully disclose
      N. Question 12: Disciplinary Actions
            -Privilege waived after malpractice suit filed.
                       
II. Attorney-Client Privilege (Ch. 7-9, 13)[N6] 
A. The Attorney-Client Privilege (Ch. 7)[N7] 
          1. Again, for the Attorney-Client Privilege to Attach, the 5 Cs must be present.[N8] 
            2. Outside of this relationship are “strangers:
                        a. Strangers are anyone other than the attorney, the client, or one of their
                            agents.
                        b. Agents include an attorney’s secretary/investigator, etc.
            3. What’s covered?
                        a. All oral communication to or from client to attorney or attorney to or from client.
                        b. Documents are covered if they are created with the purpose of obtaining legal
                            advice
                        c. Previously existing documents don’t become privileged just because an attny
                            gets a hold of them.
            4. Control and Waiver
                        a. The client controls the privilege, and only he can waive it.
                        b. If attny doesn’t claim privilege, court assumes client waives[N9] 
            5. When Privilege Doesn’t Apply
                        a. Waiver
                                    i. Client/Lawyer discloses confidential info to outsiders.
                                    ii. If UNINTENTIONAL, the court will look to see if steps
                                        were taken to uphold privilege
                                    iii. No such thing as selective privilege.
                        b. Crime/Fraud Exceptio

’s use in pending or future litigation.
                                    i. Elements
                                                A. Duty to Preserve Evidence
                                                            1. Any Big Event that leads to the ripening of a dispute will
                                                                establish a duty to preserve all materials related to the
                                                                event.
                                                B. Intentional Destruction of Evidence
                                                            1. Bad faith not required. Only need intent to destroy
                                                                related evidence.
                                    ii. Resulting Sanctions
                                                A. Dismissal of Answer
                                                B. Precluding introduction of evidence about condition of
                                                    destroyed evidence
                                                C. Ordering monetary sanctions paid to other party.
                                                D. Entering Default against destroying party
                        b. Mosaid Tech v. Samsung
                                    i. Mosaid sought a Spolation inference instruction after Samsung kept
                                       deleting important e-mails. Important conversations were ONLY kept in
                                       e-mail. Ordinarily, as a matter of course, though, the company
                                       destroyed e-mails every 90 days. BUT, After the litigation began,
                                       Samsung kept destroying emails. The judge, as such, allowed for an
                                       adverse inference instruction.
                                    ii. Factors for Spoilation
                                                A. Evidence must be in party’s control
                                                B. There must be actual suppression/withholding of the evidence
                                                C. Documents must be valid w/in request and relevant to                                                                     claims/defenses
                                                D. It was reasonably foreseeable that the evidence would later be
                                                    discoverable in the litigation
                                    iii. There is no duty to keep every doc, but there is a duty to preserve
                                        what you should reasonably know would be needed in foreseeable
                                        litigation.
 [N1]The ALI has alsot presented a restatement that acts as a good reference for judges in LegalPro cases.
 [N2]For any scenario, ask whether any of these rules apply.
 [N3]This is really the trump
 [N4]What happened in Hickman?
 [N5]5th Amend. Privilege against self incrimination prevent compelling lawyer to turn over work product notes incriminating client
 [N6]For review…start here
 [N7]PRIVILEGE PREVENTS COMPELLING OF INFORMATION…CONFIDENTIALITY PREVENTS DISCLOSURE OF INFORMATION
 [N8] i. Client
ii. Communicates
iii. Confidentially with
iv. Counsel
v. To Obtain Counsel
 
 [N9]Client could then sue for malpractice.
 [N10]Rule 3.4 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. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
 
 [N11]Big question…if you learn the location of physical evidence, or you find out who has control over it, or observe it without touching it at the scene of a crime, must you tell the police/PA? If you turn over evidence, do you
have to say where it came from.
No…but you can’t move/obstruct/destroy it.
 [N12]Must be done w/in a quick/reasonable time. You can’t just hold on to it forever.
 [N13]Examples:
        A.    May not destroy files for corporate client that may be incriminating à aiding in crime
        B.    IF you know client will destroy files you ID as incriminating you should NOT tell him about them