PROFESSIONAL RESPONSIBILITY-MASHBURN
******ATTORNEY-CLIENT RELATIONSHIPS******
DEALING WITH UNREPRESENTED PERSONS
Rule 4.3
In dealing on behalf of a client with a person who is not represented by counsel, a layer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstand the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a persona are or have a reasonable possibility of being in conflict with the interests of the client
“Shall” indicates something a lawyer HAS to do. If you disobey, you are breaking the rule.
“Reasonable” has elastic meaning, we must try to figure out what is reasonable.
The “rule” carries the force to attach a penalty if it’s broken.
The comment that follows carries “persuasive force.”
If the mindset is uncertain about whether the rule has been broken, you may reference the comment to clarify the understanding.
The comment tells the decision maker how to apply the rule.
Creation of an attorney-client relationship
How do you know when you’re a client?
· Is there confidentiality?
· Duty to avoid malpractice- idea of competence
· Some of the ways the attorney-client relationship is created
· Money does not have to change hands
· Law focuses on the client’s expectation, not the lawyers
· If a reasonable person assumes that they are your client, then that governs.
· Can form a relationship a few ways:
· Intentional
· Unintentional
· Disclosure of confidential information (it will constitute a relationship for the conflicts rule)
COMPETENCE
Rules 1.1 thru 1.4 deal with COMPETENCE
1.1- you have to be competent
1.2- divides the duties between client and lawyers
1.3- requires diligence and promptness in dealing w/client’s matters
1.4- communications
Rule 1.1 COMPETENCE
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
The attorney client privilege is a rule under evidence.
Compliance is not easy to determine
Malpractice rather than discipline
Bar takes the approach that a single act of negligence is not an offense for which you can be disciplined.
A free-standing incident is not so likely to result in discipline
CONFIDENTIALITY
Rule 1.6, SEE P. 65
Confidentiality and Privilege are NOT interchangeable terms. Because of the way they are defined, 1.6 is large and within confidentiality, lies privilege.
Model Rule 1.6—Confidentiality
Definition of information a lawyer is not permitted to reveal:
“Information relating to the representation of the client”- very broad.
Sometimes it includes the fact of WHO you are representing
Information does NOT have to come from the client- can come from a 3rd party.
It’s only under rare circumstances that the court will order the revelation of privileged information
Does NOT have to be in the form of a “communication”
Does NOT have to be information the client intends to keep secret. Default position – you may not reveal anything
Exceptions to Rule 1.6:
Part (b) of the rule is discretionary-Refers to what “may” reveal
See HIV problem p. 23.
Big Question: Is the information that the client is HIV positive confidential?
Question: is this within the scope of what can be done under MR 1.6?
Issues
Can you bring this up to the judge to prove he is a good bail risk?
Can you tell Anna (a former client and payor of Ken’s legal bills, also sleeping with Ken)
Is Ken a client?
He is a client. But, since Anna is a “third party payor” (like the parent of a juvenile) and also a former client, that confuses the matter.
Lawyer’s duty is to client: Ken
If it is criminal to knowingly expose someone to HIV, then you would have to tell.
If you have a discrepancy you may talk to another attorney formally regarding compliance with the Model Rules.
JUST SAY “NO” TO THE MODEL CODE
You should look at the Restatement provision when it is cited, but I will tell you when I expect you to know it for the exam.
The Attorney-Client Privilege
Common Law Fiduciary Obligation (not to reveal a client’s information)
PEREZ V. KIRK & CARRIGAN p. 25
The Facts:
Driver of coke truck hit bus full of kids.
Attys (K &C) for coke came to speak with driver and rep’d themselves as his attorneys.
Atty’s then hired him a different attorney (b/c of Respondeat Superior-doctrine holding an employer or principal liable for the employee’s wrongdoing committed within the scope of the employment) and turned driver’s statements over to the DA.
The Law:
Found that an attorney-client relationship was implied by the conduct
Relationship doesn’t need fees, can be rendered gratuitously
K &C breached fiduciary duty because regardless of whether from an evidentiary standpoint the privilege attached K&C either:
wrongfully disclosing a privileged statement
wrongfully representing that an unprivileged statement would be kept confidential.
Presence of a 3rd party in room did not ruin the privilege
Summary judgment reversed and remanded for trial
Entity Clients vs. Individuals
Partnerships/Associations/Unions
If you were going to serve a group, who would you serve?
Corporations are essentially fictional persons (defined by constituents):
How do we determine which communications fall within the privilege?
General Definition: rule of evidence 503 p 617 (Reg. of Lawyers)
Confidential communications made for the purpose of facilitating the rendition of professional legal services to the client
Client doesn’t have to disclose the communication/client can prevent any other person from disclosing it
Communication does not have to come from the client
But it cannot come from 3rd persons
The communication in some sense has to go between the client
Client (or client’s representative)àAttorney (or attorney’s representative) that’s privileged info
Attorney
sonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with other law or a court order.
Self Defense (see MR 1.6 part 5 and comment 10)
Model rule states that you can only disclose information about the client when responding to allegations about conduct pertaining to that same client in circumstances where you are establishing a defense to a criminal charge or a civil claim
Model rule states that you can reveal information in response to allegations during ANY proceeding concerning representation.
Collection of Fees
Lawyers permitted to reveal confidential info to the extent necessary when they sue to collect fees.
Waiver
Explicit—suing the lawyer for malpractice and making allegations about communications between client and lawyer
Implicit
Implied or “constructive” waiver
Claus Von Bulow Case: von Bulow convicted of attempting to murder his wife. Acquitted on appeal. Von Bulow’s attorney wrote a book about the case. A court then held that publication of the book was “waiver by Von Bulow” to only those matters contained in the book.
“Fairness Doctrine”-if in court a client made selective disclosure of privileged information. This doctrine would require the production of the remainder.
Crime-Fraud Exception (MR 1.6 (2) &(3)) & Federal Rules of Evidence p.618
“communications between clients and counsel are not privileged when the client has consulted the lawyer in order to further a crime or fraud, regardless of whether the crime or fraud is accomplished and even though the lawyer is unaware of the client’s objective and does nothing to advance it” txt p 50.
Two elements:
Client reveals intent to commit a crime or fraud
Consult with lawyer is in furtherance to commit the crime or fraud.
