Professional Responsibility – Fall 2012- Reid
Confidentiality
· 1.6 – Confidentiality
o 1.6(a) requires I do not reveal info unless client gives informed consent
§ Confidential info includes: personal info, interviews, documents, photos, info before representation begins, notes by lawyer (p. 153)
§ Also applies to disclosures that could lead to discovery of confidential info by third persons. Com. 4.
o 1.6(b) allows me to reveal info to the extent I believe necessary
§ (b)(1) to prevent reasonably certain death/subst. bodily harm
· Com. 3 – It is reasonably certain if it will be suffered imminently or if there is present and substantial threat that person will suffer harm at a later date if lawyer fails to take action necessary to eliminate the threat. Com. 6 – reasonably certain death/substantial bodily harm. Imminent or present and substantial threat.
§ (b)(2) to prevent client from committing crime/fraud
· Reasonably certain to result in substantial injury to financial or property interests of another and,
· Client has used or is using lawyer’s services. Com. 7
· For organization, see 1.13.
§ (b)(3) to prevent/mitigate damages from client committing crime/fraud the extent necessary to enable affected person to prevent/mitigate reasonably certain losses or recoup their losses. Com. 8 Client must have used lawyer’s services in connection with the crime.
§ (b)(4) to secure legal advice about complying w/ rules
§ (b)(5) in self defense (malpractice suit) Com. 10
§ (b)(6) to comply with other law or a court order
· Lawyer should assert all nonfrivolous claims that the info sought is protected by 1.6 Com. 13
§ Client must have used lawyer’s services in connection with the crime.
§ *NOTE – 1.6 allows me to reveal criminal/fraudulent conduct whether it is past, ongoing, future.
· 1.16(b) permits lawyer to withdraw if client persists in crime
§ Com. 5 – allows lawyer to disclose to lawyers within his firm info re: client
§ Com. 5 – lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out representation.
§ Com. 6 – reasonably certain death/substantial bodily harm. Imminent or present and substantial threat.
§ Com. 13 assert all nonfrivolous arguments that documents should not be turned over because they are confidential
§ Com. 18 – does not mention whether confidentially survives client’s death. Problem: client may not want certain confidences ever revealed. Might argue that interests of living outweigh those of the dead.
§ Com. 16/17 –
1. act competently to safeguard info
2. take reasonable precautions to prevent info getting out. Reasonable expectation of privacy.
§ Lawyer should try to persuade client to take action to obviate need for disclosure.
§ It is important to distinguish the literal interpretation from the Restatement, and provide a rationale.
· Restatement §60: If something is in public record, it may be done as long as disclosure will not lead to the person you are telling finding out more information they are not privy and information that should still be kept confidential. It appears only to restrict revelation if it will be materially adverse to client. Adverse effects: material misfortune, disadvatange, prejudice, embarrassment.
· The rule is too broad. Casual disclosure to friends/family is okay as long as identity of person is kept secret.
o Rules 1.2(d), 4.1(b), 9.1, 8.3, 3.3 (reveal to tribunal) may require disclosure.
o Before revealing in self-defense, lawyer must inform client.
o Sarbanes-Oxley Act: requiring lawyers to report securities fraud to highest official in corporation. If fraud is likely to harm investors, lawyer may report to SEC (p. 197).
Lawyer Misconduct
· 8.1 – Bar Admission and Disciplinary Matters
o requires all applicants to the bar to answer questions truthfully, correct a misapprehension. Comment 2: this is subject to 5th amendment
o must disclose a fact necessary to correct a misapprehension or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.
· 8.3 – Reporting Professional Misconduct
o Must report if conduct
§ raises substantial question as to lawyer’s honesty/trustworthiness/fitness
§ “substantial” – how serious is the offense?
§ Lawyer “knows” – preponderance standard
o Not required to report if reporting would violate 1.6 or info about a lawyer’s assistance program. Com. 2
o Himmel rule: discipline lawyers who do not report misconduct. Downside: lawyers threatened to snitch on other lawyers who were acting badly in order to gain leverage in negotiation
o Conduct need not be illegal for it to indicate that it adversely reflects on attorney’s fitness to practice law. i.e. sexual harassment
· 5.1 – Responsibilities of Partner/Manager Lawyer
o 5.1(a) requires partner lawyer to make reasonable efforts to ensure all lawyers conform to rules
o NOT responsible for subordinate’s misconduct if didn’t know about it
o RESPONSIBLE if for subordinate’s misconduct if:
§ orders misconduct
§ knows of misconduct
· 5.2 – Responsibilities of Subordinate Lawyer
o Subordinate lawyer does not violate Rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of duty.
§ Comment 2 – If question is reasonably arguable, supervisory lawyer may decide, and subordinate lawyer will not be responsible.
§ Subordinate lawyer has responsibility to research it if he thinks it is unethical.
o A junior associate is not ordinarily responsible for violations of rules by other attorneys.
· 5.3 Responsibilities Regarding Nonlawyer Assistants
o Lawyer will be responsible if
§ Ratifies or orders specific conduct
§ Knows of conduct but fails to take remedial action
· 5.4 Sharing Fees with Nonlawyers
o Retirement plan okay
o May share with nonprofit that employed, retained, or recommended employment of the lawyer
o Shall not form partnership with nonlawyer if it is for the practice of law
· 8.4(c) – Misconduct It is professional misconduct for a lawyer to
§ violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
§ commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
§ engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
§ engage in conduct that is prejudicial to the administration of ju
ty to each). No secrets kept from the other. 1.7 Com. 30
· Deceased Client – privilege applies even after client dies.
o Exception: Swidler v. Berlin – parties contest a will.
· §82 – The crime/fraud exception
o Privilege does not apply when client uses lawyer to engage in crime/fraud
o Can argue for in camera inspection by judge to see if privilege applies.
· Corporations –
o Upjohn
§ Subject matter test – extends privilege to lower level employees as long as it relates to the representation.
§ Control group test (rejected in Upjohn) – limits privilege to higher level
§ Rehnquist said the control group test frustrates the purpose of the privilege by discouraging communication of relevant information by employees of the client attorneys. Under either control or subject matter test, the privilege belongs to the corporation, not to the employee. An open employee who believed that his comments would be confidential would not be happy to see that government gets their info if corporation waives part of privilege. An employee who discloses during internal investigation and is not considered a client covered by privilege, they could be discharged disciplined, or dismissed.
§ Downside to having a broad privilege for corporations – If government wants to investigate and forces the corporation to waive part of the privilege, they can have access to all employees that were covered under the privilege. Government seeks corporate waiver of privilege in exchange for lighter penalty. The government’s interview may result in employee dismissal or criminal charges. In a criminal case, government would have to subpoena employees not covered by the privilege.
§ crime-fraud exception does not cover the past illegal bribes
§ Corporate privilege belongs to corporation, not the employee, so employee who understands the privilege will not necessarily feel comfortable disclosing illegal conduct. If the corporation waives the privilege, the government may find out about employee’s conduct.
§ Lawyer’s option: argue for a selective waiver, in which you only reveal some info, such as names, facts
· Work product Doctrine – protects some docs not protected by the Privilege, such as notes on interviews with non client witnesses, lawyer’s notes to himself 26b3. You to have to prove that material is being prepared in anticipation of litigation.
· Policy: lawyers need full info to provide proper representation, clients need the privilege to trust lawyers so that they will be honest. Clients need to know about the privilege.
· Privilege is Waived if client or lawyer has disclosed to a third party not privileged.
