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Legal Profession
St. Louis University School of Law
Kelley, Patrick J.

Legal Profession (Kelley_Spring 2010)

Creating and Maintaining a Profession

What does it mean to be a professional?
Professional = has specialized training which enables them to handle problems people are incapable of handling on their own (learned professional)

When the professional accepts a person’s problem = entering into a relationship of trust with that person that gives rise to personal moral obligations
Obligation to exercise/act with competence (Rule 1.1) These are the first two
Obligation to exercise/act with diligence (Rule. 1.3) mandating rules in model rules

Rule 1.1 = a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.3 = a lawyer shall act with reasonable diligence and promptness in representing a client.

Professional conscience and professional ethics
Rule 1.2 = a layer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Rule 2.1 = in representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, which may be relevant to the client’s situation.

Introduction to Secrecy
It is essential that the client trust the lawyer’s secrecy in order for the client to open up (opening up = more effective representation)
Lawyer should advise client of this obligation and assure them of their confidentiality

3 separate branches of secrecy in the attorney client relationship
Ethical duty of confidentiality = a lawyer shall not reveal information relating to the representation of a client (broadest of the secrecy protections)
Source = Rule 1.6
1.6(a) does not formally define confidential information à defines the scope = information relating to the representation of a client (unless an exception applies)

Limited in two ways
You cannot refuse to testify or provide interrogatory answers unless your testimony is expressly protected by the attorney client privilege
You cannot refuse to produce documents or disclose your opinions unless the information is protected by the attorney client privilege or by the work product doctrine

Attorney client privilege = an attorney cannot be compelled to reveal communications between the attorney and their client (smaller, but stronger, protection that ethical duty)
Source = Rule of evidence
Test = 5 Cs (all must be met for the privilege to apply)
Client
Communicates
Confidentially with
Counsel (lawyer acting as a lawyer)
to obtain/for the purpose of Counsel
Most people believe that if you get information in the course of representation = privileged
Virtually anything that the client communicates to the lawyer, whether orally or in writing, will be protected by the attorney client privilege
Communications made in writing are privileged as long as it is made in confidence for the purpose of seeking legal advice
A client cannot turn existing, non privileged documents into privileged communications simply by handing them to lawyer
The lawyer’s communications to the client are protected by the attorney client privilege à why?
Lawyer’s advice to a client nearly always directly or indirectly reflects the client’s communications to the lawyer à if you knew what the lawyer told the client, you could figure out a lot about what the client told the lawyer
If it doesn’t fall within the realm of representing your client = only the ethical duty of confidentiality applies
If a stranger to the attorney client relationship is on the communication = not privileged
Stranger = someone who is nether the lawyer nor the client nor one of their agents
Once established the privilege belongs to the client, not the attorney
In theory only a client can claim or waive the privilege
Lawyer = client’s agent à has authority to assert the privilege on the client’s behalf
Because of agency relationship, the client suffers for the lawyer’s blunders
Lawyer has a duty to protect and maintain the privilege
Ethically obligated to claim the privilege when it applies and to avoid any actions or omissions that will waive the privilege unintentionally

Note: the privilege protects only communications, not facts à the only thing that is privileged is the content of the conversation or other communications between the attorney and the client
What the client knew or did before talking to the attorney or after talking to the attorney is not privileged
What the client said or wrote to the attorney is privileged

Exceptions
Waiver = if the client waives the privilege as to a given subject, then the privilege no longer exists for information on that subject
Attorney client privilege = all or nothing à once it is waived as to any part of a subject, it is usually waived as to every part of the subject
Can be accidental rather than deliberate
A lawyer/client may accidently turn over privileged documents in response to a discovery request in litigation
Test = whether the party claiming the privilege took reasonably adequate steps to protect privileged documents against disclosure

Crime fraud = if the client uses the lawyer’s services to commit a crime or fraud, then the client’s communications with the lawyer are not privileged (even if the lawyer did not know the client was engaging in a crime of fraud at the time the communications were made)
Test = depends on the client’s intent to commit a crime or fraud, not the attorney’s knowledge of that intent

Joint clients = if two clients hire the same lawyer, and they later get into a dispute with each other, they do not have an attorney client privileged vis-à-vis each other

Advice of counsel = a client also waives the attorney client privilege if he defends a lawsuit by claiming that he acted based on advice of counsel
When a client puts the advice of a lawyer into issue, the client waives that attorney client privilege related to that advice

Lawyers self defense = a lawyer has the right to disclose confidential information (including information protected by the attorney client privilege) in self defense
Limitation = privilege only waived to communications bearing directly on the claims of malpractice
Client waives the privilege by attacking the lawyer
Without this waiver the lawyer would be defenseless

Work product protection = generally tangible things prepared in anticipation of litigation cannot be discovered or compelled (opinions are absolutely protected and can never be discovered)
Source = FRCP 26(b)(3)
Test = Hickman v. Taylor
Protection applies to documents and tangible things prepared in anticipation of litigation by the lawyer or lawyer’s agents
Generally protects only tangible things, not oral communications (unless oral communication = oral equivalent of tangible work product)

Ordinary work product = includes information recorded by an attorney (or by the attorney’s clients, or by the attorney’s agent) in anticipation of (i.e. because of) litigation or in anticipation of trial
Can still be discovered/compelled to produced of otherwise discoverable (2 prong showing)
Party must demonstrate a substantial need for it to prepare for its case
Party cannot, without undue hardship, obtain the substantial equivalent

Opinion work product = consists of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation
Virtually absolutely protected against discovery/compelled production
A court will not order a party to produce opinion work product even when the party seeking discovery has made the showing necessary to obtain ordinary product
Subject to waiver just as materials protected by the attorney client privilege are subject to waiver

Trial experts = FRCP Rule 26(a)(2)(B) requires a party to send a report to opposing counsel stating the expert’s opinions, the basis for those opinions, and the data or other information the expert considered in forming those opinions
FRCP Rule 26(b)(4)(A) allows trial experts to be deposed
May generally answer questions about communications with the lawyer that would merit work production for a consulting expert

Consulting experts = an expert is merely a consulting expert when retained or employed in anticipation of litigation or for trial but is not expected to testify
FRCP Rule 26(b)(4) allows discovery only upon a showing of exception circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means

Witness statements = if you make notes about what a witness told the lawyer and never show the notes to the witness = protected

Criminal cases = work product protection extends to lawyers in criminal cases
FRCrimP 16(b) provide that except as to scientific and medical reports, the general rule allowing discovery does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or statements made by the lawyer
FRCrimP 16(a) grants reciprocal protection to the government for internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case
5th amendment = privilege against self incrimination would probably prohibit

purpose of the privilege would not be served by shielding an individual from possible civil and criminal liability. Where the crime, if any, has already been committed, there is no possibility of further criminal acts occurring if the individual is not identified, and the disclosure sought would expose the client to possible criminal prosecution, the client’s name is privileged information that the attorney cannot be compelled to reveal.

The Attorney Client Privilege and Physical Evidence
5 basic categories of physical evidence
Evidence given to you by a client
Evidence given to you by a third party
Evidence that you find on your own
Evidence that you see but do not touch
Evidence that you only hear about but do not see or touch

People v. Meredith
Ds were convicted of first degree murder and robbery. D1’s convictions depended on the theory that he conspired with the D2 to bring about the killing and robbery. The prosecution rested this theory on the location where the victim’s wallet was found. A defense investigator made the discovery of the wallet’s location after D1 had divulged it to his counsel.
Are the investigators observations of physical evidence privileged? à An observation by defense counsel or his investigator, which is the product of a privileged communication, may not be admitted unless the defense by altering or removing physical evidence has precluded the prosecution from making that same observation.
Investigator = agent of the attorney
Location of the physical evidence was received in a privileged communication from the client.
The defense investigator removed the wallet and brought it to D1’s counsel, who, after examining its contents, delivered the wallet to the police. Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question. Under the circumstances, the prosecution was entitled to present evidence to show the location of the wallet.

What about physical evidence given to an attorney?
Courts are unanimous that an attorney can’t hide evidence (obstruction of justice)
So what do you do if a client comes to you evidence of a crime that he wants you to keep secret? à 2 options
If you take the evidence into your possession you have turn it over to the police
Courts get to decided what prosecution can say to jury about where they came from (no clear majority)
Prosecution has to establish the chain of custody in order to get the evidence in
Can’t let prosecutor say he got it from D’s lawyer
D can stipulate à doesn’t this violate the privilege?
You can refuse to take them (Standard 4-4.6 suggests this is okay)

Rule 3.4 = 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
There is a difference between state and federal obstruction of justice statutes
State law = destroying physical evidence is a crime even before a subpoena is issued
Federal law = intentional destruction of documents or other evidence after a subpoena for them has been issued is an obstruction of justice or a criminal contempt; but, destruction of evidence before a subpoena is issued is a federal crime only if:
The documents are relevant to a pending grand jury or criminal proceeding
The destruction was done with a corrupt or evil intent

The tort of spoliation = civil liability for destroying evidence
Intentional spoliation (5 elements)
Pending or probable litigation involving plaintiff
Knowledge by the defendant of the existence or likelihood of the investigation
Intentional acts of spoliation on the part of the defendant designed to disrupt the plaintiff’s case
Disruption of plaintiff’s case
Damages proximately caused by the acts of the defendant

Note: courts have declined to recognize a tort cause of action for intentional spoliation by a third party

Negligent spoliation (6 elements)