I. Attorney-Client Relationship
– Relationship arises when client subjectively believes there is one.
a. Competence:
i. Rule 1.1
ii. Competence: The legal knowledge, skill, thoroughness,
and preparation reasonably necessary for the representation.
b. Confidentiality
i. Rule 1.6
– 1.6(a) section that prohibits revealing confidential info.
– 1.6(b) says when you may reveal information. There’s a
“reasonable” check built in here.
– (b)(2) by definition is about preventing something that hasn’t happened yet. This could also work for an ongoing activity with a future component.
– To use this exception, client must have used lawyer’s services “in furtherance.”
– (b)(3) also has the in furtherance requirement.
ii. Perez v. Kirk & Carrigan: Coke truck crashed into school bus. Coke’s
lawyers told him info. they collected was confidential. Then they gave it to the DA. Attorney-Client relationship was created and breached.
iii. To sue a lawyer for breach of fiduciary duty:
1. Wrongfully disclosing a privileged statement.
2. Wrongfully representing that an unprivileged statement would
be kept confidential.
iv. Why have a confidentiality rule?
1. Empirical: encourages clients to be forthcoming with information.
2. Normative: It’s right to be able to trust lawyer.
v. Duty of confidentiality continues after representation ends.
vi. Exceptions we specifically mentioned in class
– Right to Defend
– When client implicitly or explicitly waives.
– Implicit Example: If you put it at issue in litigation, an Advice of Counsel defense.
– Crime-Fraud Exception
Purcell (p. 51): Court found that it was not a crime-fraud exception. The client did not seek legal advice from the lawyer to further his arson crime. So the info. From their conversation remained privileged. There was a protected relationship, because arsonist was consulting lawyer about another legal matter.
c. Privilege
i. Attorney client PRIVILEGE is an evidentiary shield over communications between lawyer and client. This is only going to come up when people are compelled to testify (discovery, subpoena, etc.).
– Ex. Incorporating this and Real Evidence:
– If client brings me doctored books, are they covered by privilege? NO. They’re not COMMUNICATIONS. However, what he told me about doctored books would be privileged. I could never be asked what client told me about those.
–
ii. Upjohn: Rejected Control Group test for entity client and privilege, used subject matter test.
– Control Group Test: only those in the control group are covered by attorney-client privilege. Control Group is “officers and agents responsible for what the company’s actions in response to legal advice are.”
– Upjohn uses subject matter test. Here’s how it defines privilege: Was the communication intended to give the legal advice to the entity?
1. The communications concerned matters within the scope of the corporate employee’s duties.
2. At whose direction? Superiors.
3. For what purpose? So corporation can get legal advice.
4. Within the scope of the employees’ duties.
– IR
forbids communication about the subject of a representation.
vi. While this rule is a stumbling block to settlement, it does act to prevent
victimization of laymen.
J. Different Rules for Accidentally Getting Confidential Information
i. “Never Waived Rule”: A disclosure that was merely negligent can never effect a waiver.
ii. “Strict Accountability”: effects a waiver of privilege regardless of the privilege holder’s intent or inadvertence.
iii. “Balance Test”: Court considers a number of circumstances (page 115)
K. Fees
i. Rule 1.5
ii. Can’t be unreasonable.
iii. Lodestar billing: Hourly by time.
iv. Contingency: pay for a certain result.
– No contingency fee for crim.
– No contingency fee for securing a divorce or alimony
– Must be in writing
– Contingency Fees are an exception to the general rule that you
can’t acquire an interest in a client’s matter.
– Even a contingent fee that’s reasonable when agreed upon can turn out to be unreasonable in retrospect.
– Up to 40% contingency fees are generally reasonable. Beyond that, there’s a rebuttable presumption that it’s unreasonable.
– Has to be in writing, signed by client. (Other fees are only preferably in writing)
– Has to specify percentage.
