Select Page

Professional Responsibility/Legal Ethics
Temple University School of Law
Morisey, Muriel

PR Outline
 
Q: Can you be a good person and a good lawyer?
 
CONFIDENTIALITY (Classes 2-5)
Ø      Model Rule 1.6 – prohibits lawyers from revealing any information “relating to the representation of the client” without the client’s informed consent – continues after representation ends and even after client death
·         Model Rule 1.8(b); 1.9(c). Rest. 60(1)(a) – forbid lawyers from using confidential in formation against the interest of a current or former client
·         PDC may extend to prospective clients – Model Rule 1.18(b) – lawyer shall not reveal information learned in a discussion with a prospective client or use that information to the disadvantage of the prospective client
·         Rule 1.6 – lawyers can share information with other lawyers in their firm unless the client expresses not to
·         Comment 4: (a) prohibits a lawyer from revealing information relating to the representation of the client. This also applies to disclosures by a lawyer that do not in themselves reveal protected information by a third person. Hypotheticals to discuss issues are okay though
Ø      Exceptions to PDC
·         Rule 1.2(a) – lawyers are authorized to make decisions respecting the representation without consulting the client – Implied Authority – as long as the lawyer is pursuing the client’s ends as the client defines them
·         Model Rule 1.6(a) and Restatement 61 say that a lawyer may use or disclose confidential client information when the lawyer reasonably believes that doing so will advance the interest of the client in the representation (under 1.2(a))
Ø      Informed Consent – MR 1.0(e)
·         Lawyer must fully and candidly advise the client about the risks and benefits of disclosure – Not a reasonable client but the specific client
Ø      Disclosure to Prevent Wrongdoing (1.6(b))
·         In general, when there is permissible disclosure, the lawyer can disclose information only to the extent that lawyer believes is reasonably necessary to accomplish the objective of the disclosure – Over disclosure violates 1.6(a)
·         Under Rule 1.4(a)(2) – duty to reasonably consult with client about the means by which the client’s objectives are to be accomplished – attorney should first consult client before disclosing, and if client refuses to give informed consent to waive, attorney can disclose
·         MR 1.6(b)(1) – Physical Injury to Others and Crimes
–          If the harm is (1) reasonably certain to occur, and (2) involves death or substantial bodily harm, then the lawyer may disclose information (3) to the extent the lawyer reasonably believes necessary to prevent the harm
Ø      Spaulding v. Zimmerman(1962) – D’s lawyer in a personal injury lawsuit learns that P has a life-threatening injury of which he is unaware.  Under the 1983 M

poration based on “professional considerations” – whistle blowing
§         Fraud by a client, not assisted by a lawyer (p. 144)
§         Fraud by a client, assisted by a lawyer (p.144)
§         Definition of Fraud – MR 1.0(d) (p.146)
 
ATTORNEY-CLIENT PRIVILEGE (Classes 6-7) (protects information communicated between client and lawyer for purpose of seeking legal advice)
o        Elements of A-C Privilege(1) Where legal advice of any kind if sought (2) from a professional legal advisor in his capacity as such, (3) he communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or the legal advisor, (8) except that the protection is waived
o        Restatement’s Elements(1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client
Communication – privilege does not cover information obtained by a lawyer through observation or investigation; identity of a client; client’s appearance; information communicated by non-client