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

Legal Pro Outline – Needham                                                                                                            Spring 2013
 
Secrecy
·         Three general Rules
o   (1) Duty of Confidentiality (Model Rules/Ethics) à governed by Rule 1.6 – protects info relating to the legal representation of someone
§  Does not apply if statute, ct rules, or ct order requires you to disclose (testify) information
§  Can’t refuse to testify or give interrogatory answers unless testimony protected by atty-client privilege
§  Can’t refuse to produce documents or disclose opinions UNLESS info protected by atty-client privilege, OR work product immunity
o   (2) Atty/Client Privilege (Evidence) à prevents atty from being compelled to tell what they discussed (orally or in writing) with clients
§  What you or what client said
§  may refuse to testify if document is protected
o   (3) Work Product Immunity (CivPro 26(b)(3)) à prevents lawyers from being compelled to reveal certain expressions of info made during representation.
§  F.R. Civ. Pro. 26(b)(3) protects the following info:
▫   Documents and tangible things,
▫   Prepared in anticipation of litigation or for trial,
▫   By or for another party or that person’s representative
 
 
Duty of Confidentiality
·         When does it apply? – (1.6, Comment 3) Duty of Confidentiality applies in situations OTHER THAN those where evidence is sought from lawyer thru compulsion of law.
o   Confidentiality rule applies not only in matters communicated in confidence by client, but ALSO to all info relating to representation of the client, whatever its source.
 
·         Rule 1.6 does NOT apply if:
o   Client gives informed consent to reveal the confidential info
o   Disclosure is impliedly authorized, or
o   Disclosure permitted under 1.6(b)(1)-(6)
 
·         Analysis:
o   Is person a client? – To determine, ask:
§  Does person believe he or she is my client
§  If YES à is that belief reasonable in light of all circumstances
§  Representing a corp. – do their officers think you rep them too
§  Trade association – do members think
§  If you do not clearly reject a person’s case that they present
§  You finish working for a client but don’t tell them relationship is over
 
 
Work Product Doctrine
·         W/P Doctrine applies (like A-C privilege) in judicial and other proceedings where lawyer may be called as witness or otherwise required to produce evid concerning the client.
 
W/P Doctrine in Civil Cases – governed by Fed. R. Civ. Pro. 26(b)(3)
·         Research, notes from witness interviews, legal strategy memos
·         Hickman v. Taylor à two categories of WP:  1) ordinary, and 2) opinion
o   Ordinary Work Product à info recorded by atty/atty’s client/ atty’s agent in anticipation of litigation or in prep for trial; ordinary business records do NOT qualify.
§  Discovery of Ordinary work product allowed if two are satisfied:
▫   (1) “substantial need” in prep of their case
▫   (2) Party is unable w/out  “undue hardship” to get “substantial equivalent” in another way
o   Opinion Work Product à mental impressions, conclusions, opinions, or legal theories
§  court MUST protect against disclosing this, even if there’s “substantial need” for it and/or they couldn’t get it any other way w/o “undue hardship.”
·         W/P Doctrine covers work by Investigators, Experts, Consultants, etc. – if the W/P is prepared in anticipation of litigation.
·         Tangible v. Oral communication à only tangible covered by W/P doctrine.
 
W/P Doctrine – Criminal Cases – Fed. R. Crim. P. 16(b)
·         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
 
Attorney/Client Privilege
·         *Note: Atty/client privilege is stronger that Duty of Confidentiality!
o   Most client info is protected from disclosure by Attorney-client privilege b/c it’s stronger than Confidentiality!
·         *When does A-C privilege apply? – (1.6, Comment 3) A-C Privilege applies in judicial and other proceedings where lawyer may be called as witness or otherwise required to produce evidence concerning the client.
·         What is covered by A-C privilege? –
All oral or written communication from or to client to or by atty
Documents: Privilege attaches as long as document is CREATED in confidence for purpose of seeking legal advice
May not make previously existing document privileged simply by handing to atty
 
 
·         When A/C Privilege applies – when all are present (5 C’s):
o   When a Client
o   Communicates
o   Confidentially (otherwise, privilege is waived)
o   With Counsel (lawyer acting as lawyer)
o   to obtain Legal Advice (this is purpose of communication)
 
·         When privilege does NOT apply:
o   (1) Waiver
§  Client/lawyer intentionally/unintentionally reveals information
▫   Unintentional à Ct will look to see if reasonably adequate steps were taken to protect privilege
§  Selective waiver does NOT apply
§  Change in corporate management allows different people to reveal info
o   (2) Crime-Fraud Exception à client’s intent to commit a crime or fraud, not on Atty’s knowledge of the fraud
o   (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
o   (4) Advice of counsel defense à when client puts advice of lawyer at issue, waives privilege relating to advice
o   (5) 1.6(b)(5) – Lawyer’s self-defense exception à lawyer may disclose info in self-defense; client waives

e v. Meredith
·         Facts:  D found wallet at scene of crime, took it home and burned it.  Then threw it in dumpster.  Then, D’s atty found wallet. – what can he do w/it?
·         RULE: IF counsel (1) discovers location of evidence based on privileged communication, AND (2) leaves evidence where discovered à observations are privileged
o   Removal or alteration (which keeps opposing counsel or law enforcement from observing it) = waiver of privilege as to condition and location
 
Consequences of Destroying Physical Evidence
·         Tort of Spoilation – liability for willful destruction of evidence OR negligent failure to preserve potential evidence for another’s use in pending/future litigation.
o   Standard for Spoilation: Party must commit a willful act AND have some degree of knowledge that the info was relevant to pending/potential litigation.
§  (1) The person destroying the evidence must have a duty to preserve the evidence, AND
§  (2) The destruction is intentional/willful – must take affirmative action that destroys the evidence.
§  Bad faith NOT required
·         Duty to preserve Evidence — what triggers it?
o   An evidence production request
o   **When obvious/major event occurs, operate under assumption that it will lead to litigation and preserve all relevant evidence.
 
CASE: Mosaid Tech. v. Samsung
·         Facts: Even after complaint served on Samsung, normal destruction process of e-mails continued at Samsung.
o   Samsung didn’t put “litigation hold” on normal destruction process.
o   **Serving complaint is OBVIOUS evidence that litigation is occurring.
·         Holding: The court found Samsung committed Spoliation of evidence because the following 4 factors were satisfied:
o   (1) Evidence was in party’s control
o   (2) Must appear there’s an actual suppression/withholding OR negligent destruction of the evidence
o   (3) The Evidence destroyed or withheld was relevant to claims or defenses, AND
o   (4) Was reasonably foreseeable that evidence would later be discoverable in litigation
·         Standard: There is no duty to keep every document in advance of litigation, but there is a duty to preserve what party knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation