Professional Responsibility Outline

PROFESSIONAL RESPONSIBILITY CRAVENS SPRING 2011

1. General – Where does the law of lawyering come from?

a. Supreme Court of each state decides the rules for the jurisdiction

b. Most states no longer use the Code but are moving towards the Rules, although not state has adopted them completely

2. The Lawyer-Client Relationship

a. General Stuff

i. When do you have a lawyer/client relationship?

1. Asking advice without receiving an answer is not enough

2. If there is a grey area, benefit of the doubt goes to client because they do not know what creates a relationship – all about reasonable belief of the client

3. It does not matter who is paying, you represent the client

ii. Rule 1.14 – obliged to act in the best interest of a client with diminished capacity

iii. As best practice, be clear initially and put in writing!

b. Competency

i. Rule 1.1 Competence –

1. Must be competent

2. Legal knowledge, skill, thoroughness, and preparation reasonably necessary

3. Don’t have to be perfect, but make sure you research and prepare

c. Confidentiality

i. Rule 1.6 – Confidentiality of Information (obviously see rule)

1. A lawyer must not reveal info relating to representation of a client

a. Unless client gives informed consent

b. or, disclosure is impliedly authorized in order to carry out the representation,

c. or disclosure is permitted.

2. Disclosure may reveal info relating to the representation to the extent the lawyer reasonably believes necessary & ONLY TO THE EXTENT NECESSARY (1-6)

ii. Any info relating to representation

1. info you wouldn’t know but for representing the client

2. Cannot disclose voluntarily – need client’s informed consent

iii. All about ALLOWING you to disclose, NOT requiring you

iv. ANALYSIS FOR EXAM

1. Is there a lawyer-client relationship?

2. Who is the client?

3. Is the info confidential – exceptions?

4. Where does the info come from?

v. Generally

1. Info relating to the representation of a client

a. Also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.

2. Encompasses more to protect client

3. Self-imposed rule of the profession

4. Basic fiduciary duty adopted from agency law

5. Prohibits voluntary disclosure

6. Exceptions to comply with other obligations

7. Perpetual duty, lasts forever

8. Applies in situations other than those where evidence is sought from the lawyer through compulsion of law

a. Applies not only to matters communicated in confidence by the client but also to all information relating the representation, whatever its source.

9. Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed otherwise

vi. Cases

1. Perez v. Kirk and Carrigan- An agreement to form an attorney-client relationship may be implied from the conduct of the parties

a. Claim against attorneys because they said they were his attorneys but later took his statement and gave it to the D.A.

b. Benefit of doubt in favor of the client – Att/Client relationship

c. Clearly confidential information

d. Confidentiality can kick in even with prospective clients

e. These lawyers should have:

i. Hired a different lawyer first, or

ii. Given warning that they represent company and not the guy

d. Privilege

i. Generally

1. Protects against compelled disclosure

2. Not about information, about COMMUNICATIONS:

a. between lawyer/agent and client

b. for the purpose of seeking legal advice

c. made in confidence

3. Creature of evidence law, NOT controlled by the profession

4. Exceptions to allow for broader concerns

5. Lasts forever

6. Underlying facts are not privileged

7. Applies in judicial and other proceedings

ii. Restatement 68 – Attorney Client Privilege – Attorney client privilege may be invoked as provided in 68 with respect to:

1. a communication

2. made between privileged persons

3. in confidence

4. for the purpose of obtaining or providing legal assistance for the client

e. Entity Clients

i. Rule 1.13 – Organization as a Client – A lawyer has the same ethical duty under Rule 1.6 whether the client is a biological person or an entity like a corporation.

1. Example: If an organizational client requests its lawyer to investigate allegation of wrongdoing, interview made in the course of that investigation between the lawyer and the client’s employees or other constituents are covered by Rule 1.6

ii. Cases

1. Upjohn Co. v. U.S.

a. Which constituents of an entity, under what circumstances, can have privileged communication?

b. Control Group Test – Restricts the availability of the privilege to those officers who play a substantial role in deciding and directing a corporation’s legal responses

c. Supreme Court rejects Control Group Test

i. Too narrow and arbitrary

ii. discourages full disclosure

iii. Encourages corp. not to investigate

d. Court adopts Subject Matter Test (Upjohn test)

i. Subject matter must related to the litigation and be within the scope of the employee’s duty to the corporation

2. Samaritan Foundation v. Goodfarb

a. Upjohn test too broad

b. Witness communications not privileged – matter of efficiency

c. Requirements for privilege in entity context (Goodfarb Test)

i. if entity initiates conversation

ii. employee acting within the scope of job

iii. talking about company trying to assess/respond to legal consequences

iv. person’s conduct subject of liability

d. If employee initiates the conversation, privileged!

e. NOTE – AZ overruled this decision

i. if you just witness an incident, not privileged

ii. statements not privileged because nurses were witnesses

iii. Restatement 73 – Privilege for an Organizational Client – When a client is a corporation…, the attorney-client privilege extends to a communication that:

1. otherwise qualifies as privileged under 68-72

2. is between an agent of the organization and a privileged person

3. concerns a legal matter of interest to the organization; and

4. is disclosed only to:

a. privileged persons and

b. other agents of the organization who reasonably need to know of the communication in order to act for the organization

iv.

f. Exceptions to Privilege and Confidentiality

i. Self-Defense- Comment 10

1. Rule 1.6(b)(5)

2. Meyerhofer – Atty can protect himself if the victim

3. You DO NOT have to wait until you are accused or sued

a. you can preempt

b. must be reasonably necessary and only to the extent reasonably necessary

4. Potential problem – People will just sue the lawyer so that he will reveal info – the lawyer suing the other lawyer will face