Legal Pro
1. Duty of confidentiality – Rule 1.6
a. Info gained (anything RELATED TO) while representing a client (includes POTENTIAL clients), who reasonably believes they are your client, cannot be voluntarily revealed
i. Weaker than atty-client privilege – pretty broad
1. Basically, duty of confidentiality encompasses both the privilege and work product – if it is protected by the privilege/work product, then it is protected by the duty of confidentiality
b. Exceptions – (a):
i. Client gives IC to reveal
ii. (a) – Disclosure is impliedly authorized OR
1. Includes interrogatories
2. Implied authority evaporates when explicit order given
iii. Disclosure permitted under 1.6(b)(1)-(6)
1. Atty reasonably believes necessary to prevent
a. Death/substantial harm
b. Client from using atty services to commit crime/fraud reasonably certain to substantially injure client’s financial interests/property
c. Prevent, mitigate, or rectify injury to another’s financial interests
d. Advice about compliance w/RPC(?)
e. Defend ag/allegations
f. Comply w/law/court order
iv. Rule 3.3(a)(3) – False evidence offered to tribunal
1. A lawyer shall not knowingly offer evidence the lawyer knows to be false
2. Tribunal – a court, arbitrator in a binding arbitration proceeding, or a legislative body, admin agency, or other body acting in an adjudicative capacity – Rule 1.1(m)
a. Adjudicative capacity – when a neutral official, after the presentation of evidence or legal argument by a party/parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter
3. If a lawyer, his client, or his witness has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal
a. A lawyer may refuse to offer evidence, other than the testimony of a D in a crim matter, that the lawyer reasonably believes is false
v. Rule 3.3(b) – A lawyer who represents a client in an adjudicative proceeding and knows that a person intends to engage, is engaging, or has engaged in crim/fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure
vi. R1.13 – A clear violation of law may be revealed to prevent substantial injury to organization
1. MUST report up – 1.13(b) – if lawyer KNOWS officer/emp is engaging in action, intends to act, or refuses to act in a matter related to the rep that is a violation of law that:
a. Reasonably might be imputed to org AND
b. Is likely to result in substantial injury to organization
c. Amend to 1.13(b) – If atty reasonably believes not in best interest of organization to report up, SHALL (instead of must) refer matter to higher authority
2. ALLOWED (not must) report out
a. 1.13(c) – If highest authority insists on or fails to address a clear violation of the law and lawyer reasonably believes the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal info related to the representation
2. Atty-client privilege (evidence)
a. Applies when:
i. Client (includes POTENTIAL clients)
ii. Communicates
iii. Confidentially (otherwise privilege is waived)
iv. W/his/its lawyer
1. Its = entity (such as corp)
2. Also, everyone who works on behalf of atty is included in privilege
v. To obtain legal advice
b. Lot of info ordinarily not protected:
i. Name of client, fee arrangements, other facts, atty conversation w/someone other than client – ie, witness
1. Privilege protects the client’s identity where disclosure of the identity would reveal the client’s motive for seeking legal advice – Dean v. Dean
a. D’Alessio v. Gilberg
i. Statute of limitations about to run out for hit and run driver – lawyer knows identity, needed to file lawsuit for wrongful death
ii. Atty’s choice:
1. Go to jail OR
2. Tell the court the client’s name
a. Backiel went to jail rather than reveal whereabouts of client
i. Got out after 6mos b/c police located clie
did not stop normal e-mail destruction process – should have been a litigation hold, stops the normal, usual destruction of docs
ii. Elements for spoliation inference:
1. Evidence has to be in party’s control
2. Actual suppression/withholding of the evidence
3. Evidence destroyed/withheld was relevant to claims/defenses AND
4. It was reasonably foreseeable that the evidence would later be discoverable in the litigation
c. Exception (privilege never attaches in first place)
i. Crime-fraud
1. No privilege for a communication when client consults a lawyer for the PURPOSE of getting assistance in engaging in a crime/fraud or aiding a T crime/fraud IF client knew (or reasonably should know) that the conduct is a crime/fraud
a. Rule 1.2(d) – Atty can counsel client who is making a good faith effort to determine the validity, scope, meaning, or application of the law
b. Fraud – Knowing/reckless misrepresentation (or non-disclosure when applicable law reqs disclosure) which is likely to injure another who has a right to rely and does rely
i. Specific standard is a matter of state law
c. Planned violations of a law…
i. Based on non-frivolous claim that the law is unconstit?
1. Privileged – not trying to commit crime using lawyer’s advice
ii. Based on client’s position that the law is valid, but he has a moral justification for violating it?
1. Privileged
ii. Testamentary exception
1. Communication from or to a decedent relevant to an issue b/w parties who claim an interest through the same deceased client
iii. Joint clients
1. No protection vis-à-vis each other
