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

Legal Pro Outline- Needham Spring 2008
I. Secrecy – Information
Confidentiality
Difference between evidentiary rules and confidential rules
                                                              i.      Ethical rules –
1.      govern what you can or cannot do regardless of whether or not another party is requesting information
                                                            ii.      Evidentiary rules –
1.       Govern what you are required or prohibited from handing over.
Three different areas of secrecy:
                                                              i.      DOC = Ethical
                                                            ii.      ACP= Evidentiary
                                                          iii.      WPI = Procedural
Does a CA relationship exist/ Who is the Client/
                                                              i.      Preliminary question to this rule is whether or not a person is a client.
1.      MRPC 1.6 – The main test is whether or not a person reasonably believes she is your client
a.       Does person believe she is your client?
b.      Is that belief reasonable?
c.       some grey areas
                                                                                                                                      i.      Corporations
                                                                                                                                    ii.      Trade associations – you are hired by a TA but you receive confidential information from TA members
                                                                                                                                  iii.      Person tells you confidential information in hopes that you will take their case
                                                                                                                                  iv.      If you work for a client but fail to tell them that the A/C relationship is over – person may reasonably believe
d.      MRPC 1.9 Protection last forever
                                                                                                                                      i.      Doesn’t end at death
                                                                                                                                    ii.      Termination of AC relationship doesn’t end DOC
                                                                                                                                  iii.      Under 1.9(c) may reveal information generally known
2.      Agency Law – May require confidentiality duties
3.      Contract Law – may require you not to speak up about something
Duty of Confidentiality- Ethical obligation
 MRPC 1.6 – prevents lawyers from volunteering information, regardless of the source
                                                              i.      Lawyer has a duty not to reveal any information relating to the representation of a client unless an exception apply
1.      Refers to information gained in the professional relationship
                                                            ii.      Note –
1.      Prevents you from revealing information voluntarily, however does not protect client when statutes, court rules, or court orders require you to disclose information
2.      Ethics require you to claim attorney-client privilege whenever it arguably applies
3.      Ethical obligation alone (without ACP) will not require you to withhold testimony if you are called as a witness to trial
                                                          iii.      Stated again
1.      Cannot refuse to testify or provide interrogatory answers unless expressly protected by ACP
2.      Cannot refuse to produce documents or disclose your opinions unless the information is protected by ACP or the Work Product doctrine
Exceptions– situations when you do or may have a duty to reveal information.
                                                              i.      ABA Model Rule 1.6
1.      Client informed consent
2.      Implied authority
a.       Disclose required by civil pro
b.      Information would be helpful to clients case
c.       Ex: this typically applies in negotiations when atty reveals things to help achieve a client’s goal – no harmful info
3.      Prevent reasonably certain death or substantial bodily harm
a.       No longer needs to be the act of the client
b.      Does not need to be a criminal act
c.       Just reasonably certain to kill or seriously injure someone
d.      Not imminent (about to happen) just reasonable certain
4.      Prevent client from committing crime or fraud reasonably certain to substantially injure another’s financial interest or property and which client has used (or is using) lawyer’s services to further
a.       Narrow – all elements!!!
                                                                                                                                      i.      Client must have (or is) use  lawyers services to commit a crime or fraud
                                                                                                                                    ii.      will almost certainly substantially harm someone’s else property or cost someone a lot of money
5.      Prevent mitigate or rectify substantial injury to another’s financial interest or property that is reasonably certain to result (or has already resulted) from client’s crime or fraud if client used lawyer’s services to further crime or fraud
a.       And extension of rule 1.6(4)
b.      Even if the client has already committed the crime or fraud and even if the harm has already occurred Rule 1.6(b)(3) authorizes a lawyer to disclose the information necessary to mitigate or rectify the harm.
c.       If harm has occurred or not lawyer may reveal information to rectify the harm
6.      Get legal advice about lawyer’s compliance with rules of professional conduct
a.       Tell case to other lawyers for advice
7.      Defend lawyer against allegations related to representation
8.      Permitted to Comply with other law
a.       May include securities and exchange etc
b.      Important!!!
                                                                                                                                      i.      Only where the law requires disclosure not where it is merely permitted by law
9.      Comply with court order
a.       Permits but does not require!!!
b.      Ex:
                                                                                                                                      i.      Court might order a lawyer to testify or to turn over certain documents after the court has ruled that the documents are not covered by the ACP, lawyer has the right to appeal but if upheld lawyer “may” comply
                                                            ii.      10. Dealing with information that has become generally known after the representation has ended
1.      When attorney client relationship ends Reasonably believes that the return would result in physical harm to anyone generally know confidential information can be revealed.
2.      Some say text implied even if still client exception applies
3.      Different from ACP because not 5c’s
                                                          iii.      11. Dealing with false evidence that has been offered to a tribunal (ANYTHING)
1.      MR 1.6 = doesn’t mandate disclosure
2.      MR 3.3 = sometimes does
a.       3.3(a)(3)Discuss what a lawyer must do if the lawyer finds out after the fact when a client or witness called by the lawyer (not other party) testified falsely or
b.      An ex

                                       i.      Whether party took reasonable steps to protect the privilege
3.      Corporate
a.       A change in management team, will result in a change in persons who can waive the privilege on behalf of the entity
                                                            ii.      Crime Fraud – uses lawyers services to commit a crime or fraud
1.      Depends on clients intent, even if attorney did know of the intent
2.      Applies only when the client was already planning or engaged in a crime or fraud at the time the client used the lawyers services…
a.       Typically a matter of state law what is the crime fraud
b.      Can this be any crime, or does it have to relate to the issues the attorney is providing legal services for?
                                                          iii.      Joint Clients – If two clients hire the same lawyer they do not have ACP against each other
1.      Only applies if persons blame each other, and it is against the entire world.
2.      Does communication have to happen at the same time? Could I go in and talk to the attorney and then you go in, would that information be privileged?
                                                          iv.      Advice of Counsel – client waives if he defends a suit claiming he acted based on “advice of counsel”
1.      Scienter – knowledgeable intent is an element of some crimes
a.       White collar crimes like security law violations
                                                                                                                                      i.      People say they didn’t know it was wrong b/c lawyer said it was ok
b.      Waives privilege relating to that advice
                                                            v.      Lawyer’s Self Defense – lawyer can disclose in self-defense
1.      Client waives the privilege by attacking the attorney – malpractice
2.      Without waiver Atty would be defenseless
Client Identity
                                                              i.      Ordinarily the identity of a client is not protected by the privilege but in rare circumstances it is:
1.      Facts can be protected if the exposure would reveal the clients motive for seeking legal advice.
2.      When enough facts are known publicly to the police or prosecutors, that your clients identity would give the last link to the crime, this exception comes into play
3.      Different court have articulated this but she is only holding us to these two
                                                            ii.      Dean v. Dean –
1.      Facts – 
a.        two duffel bags are stolen from the husbands place of business
b.      Unnamed caller wants to return one of the bags and doesn’t want to get into trouble. 
2.      Discussion –
a.       Only when the lawyer is acting like a lawyer is it privileged
b.      Mailbox for convicts where they criminals could live things, even babies at nuns homes
c.       Lawyers are accepting something are serving a societal good
3.      Holding
a.       Appellate court – yes this is ACP