Evidentiary privilege only applies to evidence obtained from the client or the client’s agent. Does not apply if obtained from a third part
Other rules implicated here:
Under Rule 3.4(a)
A lawyer shall not unlawfully obstruct another party’s access to evidence, or unlawfully alter, destroy, or conceal evidence…potentially of evidentiary value…or assist another id such an act.
Rules 1.2(d) and 8.4(b)
Prohibit lawyer conduct that is “criminal or fraudulent”
Conformity with the law
United States v. Gellene (repeatedly failed to disclose conflicts of interest)
General obligation to obey the law
Criminal law
Civil law
Common law (except for contract breach; can advise to breach and pay damages)
Honesty to tribunals
Lawyers have to obey the law
Disclose conflicts of interest
Fancy arguments about mens rea to lie don’t work
Can I advise a client to break the law?
What if they are looking for standing to challenge a law as unconstitutional?
“I don’t advise…your choice”
Contract killing him….advise contract breach – violation of common law
Exception to prohibition against violation of common law
What about other common law
Tell client the elements of the tort and let them decide
Negligent Misrepresentation:
one who in the course of business or profession supplies information for the guidance of others in their business transactions is liable for negligent misrepresentations that induce detrimental reliance
Greycas v. Proud (Atty brother in law (also an atty) had a farm, hard times, double collateral his farm machinery, Brother in law sought loan from Greycas, Lender required atty statement that UCC search had been done and no liens on the collateral were found, Proud took list form brother, sent letter, without having done a search, Loan was made – default one year later, lender found out collateral was pledged to other lenders)
Reliance on third party communications in lieu of due diligence is not acceptable
The law does not require duplication of due diligence to enforce reliance
A duty of care may extend to third parties, including opposing counsel
Greyhound v. Norwest Bank (Greyhound sued a lawyer for the misrepresentation by the farmer that collateral equipment was new, not yet owned or possessed by him. Was not new and was encumbered by at least one lien) (CONTRA TO GREYCAS)
Ct. App. Upheld a ruling for the lawyer. Ct. says Greyhound was barred by the state’s comparative negligence…they new the equipment was not new and prepared documents asserting they were new to gain a tax benefit, also failed to make their own investigation
Roberts v. Ball (Atty at firm needed a loan, got opinion letter from partners in the firm…partners asserted themselves to be general partners, when they were only limited partners. Atty defaulted. Lender sued partners to collect and for negligent misrepresentation)
Who is the Client?
Meehan v. Hopps (corporation versus director)
Derivative shareholder suit, director of corporation thought atty was representing him personally, but he was not . . . only represented the corporation
Yablonski v. United Mine Workers of America (union interests versus individual interests)
Atty prevented from representing union after having represented three officers of the union personally;
The firm should be representing the best interest of the union, but may not be able to after representing three of its officers; officers have distinct legal interests separate from the union
Law firm should withdraw from both representation
Upjohn (corporate clients and confidentiality of information)
Allegations of bribery without company, general counsel does investigation, employee questionnaires
IRS wants access to the questionnaires
Supreme Court hold Upjohn does not have to give them over
Rejects previous Control Group Test for corporate client identity
a. those who had control over major decisions
b. in general the attorney client privilege is controlled by the client
c. attorney’s can’t waive – only the client can (a non-client can not waive the privilege since you don’t have it in the first place to waive it)
i. ac priv. only attaches to those individuals who are in a position to waive it
d. within a corporation, the board or president can waive but no one else
i. normally the lower level people can’t waive it so how can they have it
i. here the control group test would defeat the purpose of ac privilege since it would discourage the open communication of legally necessary information
ii. also unpredictable and lacks clear definition and boundaries
1. wants to encourage people to talk to lawyers
2. doesn’t reflect how attorney’s work – in order to give proper advice you have to collect information and ask questions
a. if you only talk to the people at the top, you may not get the information that you need
a. Rehnquist’s test?
i. doesn’t give one?
ii. bottom of 268 ” communications made by employees to counsel a the direction of superiors for the purpose of legal advice?
iii. Says the test is not very clear
iv. In this case ACP should be extended to include communications between atty and the people filling out the questionnaires, and the documents themselves
v. No statement as to what the test will be in the future, only in this case
vi. Corporation is in no worse position than if the questionnaires had never been done in the first place
Upjohn: Who is the client? Control group + others employees who engage in a confidential exchange of information (both parties agreed that the information was collected confidentially)
Work product – with atty mental impressions
Mental impressions must be protected – reveal legal strategies for litigation
Work Product – without atty mental impressions
If substantial need
Copies of police reports
Name of the client, address, billing statement with few details
Not a lot that does not show atty mental impressions
ACP protects the questionnaires and responses
Work product protects the notes and summaries written by the attys
To get information protected under
AC: one of five exceptions (in more depth later)(page 264)
Disposition of property under a will
Client committing a crime
Lawyer self-protection
Involves a trustee
Except for these exceptions, it is an absolute privilege
No burden great enough to justify a breach
WP mental: substantial nee, inability to get the information on your own, governed by Rule 26
WP non-mental: sufficient showing of necessity (lesser burden)
In-class chanting exercise
Repeat after me:
The corporation is the client
No personal representation because the corporation is the client
Fassihi v. Sommers (representing board of directors as a whole)
Dr. Fassihi asked to join Dr. L in Michigan radiology practice
Dr. L plus the partnership’s atty devise a plan
At issue: what duties, if any, an atty representing a closely held corporation has to a 50% owner of the entity, individually.
Is there an atty–client relationship between plaintiff and defendant?
No, the atty client is the corporation and not the shareholders
Was there a fiduciary duty?
Yes, plaintiff reposed his trust and confidence in the atty that he would be treated with the same loyalty as the other shareholders in the corporation
Plaintiff’s trust betrayed in 3 ways
Not advised of dual representation of Dr. L & the potential for a conflict of interest
Not advised of the staffing contract
Defendant participated in the scheme to get rid of Dr. F
Yes, there was an obligation to reveal dual relationship
No, there was no duty to reveal the staffing contract, made with Dr. L as an individual and to be kept confidential
Can the atty invoke AC privilege in this case as defense for not disclosing the information to Dr. F?
No.
1. Plaintiff as a member of the control group is equally entitled to the information
2. Privilege cannot protect communications made for the purpose of perpetrating a fraud (failing to disclose dual representation is a false material representation and can be the basis of a cause of action for fraudulent concealment.
Sharbrevik (excluded a partner, holding is contra to Fassihi)
Scheme to dilute the value of a shareholders stake, to the benefit of the others; fake meeting and vote to change bylaws, corporation’s atty participated
Sued the atty for conspiracy to defraud and negligent misrepresentation
Ct says there was no atty duty to the ousted member
Different cause of action may have lead to a different outcome as to whether there was a duty to the ousted member (last sentence).
(How to reconcile these cases?…glossed over a bit and didn’t come back to it)
Fickett v. Superior Ct. of Pima County (representing a fiduciary)
Guardian of incompetent person liquidated all of her assets
Atty assisted guardian in various financial transactions that
New guardian sued atty for negligence in failing to discover the financial schemes
Ct says privity not required for the atty to have a duty to the third party
Factors to be considered in determining whether the atty owes a duty to the third party
1. Extent to which th
s that were freely discoverable from the client are also discoverable form the atty
AC only protects disclosures necessary to obtain informed legal advice – disclosures that might may not have been made absent the privilege
5th only applies to compelled testimonial communication
How this would apply to something that is protected under the 5th amendment is unclear
There is no accountant-client privilege
Tax records are public
None of this information was priv to being with
Requisites for AC privilege (Restatement of Law Governing Lawyers definition)
A communication
Made between privileged persons
In confidence
For the purpose of obtaining of providing legal assistance for the client
AC privilege survives the death of the client
Must be made in confidence
Presence of third parties destroys confidentiality
Disclosure to third parties by the client destroys confidentiality
Client identity and fee arrangements are not privileged (for the most part)
Physical characteristics, emotional state, whereabouts are not privileged
Joint representation . . . Privilege against the rest of the world, but not against each other, cannot deprive one party of information
What should you do when the client comes in with the bag? Warn them that any evidence bay be turned over
Five exceptions to AC – Restatement
1. Dispute concerning a decedent’s disposition of property
2. Crime-fraud exception
3. Lawyers self protection: can use anything the client told you in your own defense if he sues you, if police charge you with aiding or abetting . . . Can use anything you have in your own defense
4. Suits where a trustee is charged with breach of a duty by a beneficiary
5. Disputes between a representative of an organization client and constituents of the organization
Overlap with the exceptions in Model Rule 1.6, exceptions to Confidentiality
Crime Fraud Exception
In re Sealed Case (Lewinsky)
Atty sais can’t give the information
Ct said yes under crime fraud exception
Was in furtherance of the crime or closely related to the crime for there to be an exception to ACP
Documents transferred to an atty are obtainable without personal compulsion on the accused and hence the Accused’s 5th does not apply – cannot invoke on behalf of the client
Must make a prima facia case for crime or fraud in an in camera hearing in order to break the AC privilege (Zolin)
In Maryland, where the Tripp tapes were made, both parties must be aware of the recording for it to be legal. The court said the prima facie case was made irrespective of the Tripp tapes.
Additional notes on crime-fraud exception:
Crime Fraud exception does not apply to past crimes for which the client seeks advice, only to ongoing or future crimes.
Legal advice sought in the past on how to commit a crime . . . Years elapse . . . Crime committed . . . Past communications not protected under the crime fraud exception
An undiscovered fraud that has not been rectified is treated as ongoing of the effects of the fraud continue
The crime fraud exception applies even if the atty is unaware that his advice was sought in furtherance of such an improper use
Although most civil frauds are also criminal, the exception applies whether or not the fraud involves criminal liabiltiy
11th Cir
First, prima facie showing of crime or fraud by client
Second, evidence that he atty’s advise was sought in furtherance or was closely related to it
Communications made to an atty in furtherance or closely related to it are not privileged . . . Courts usually assume the atty is unaware of the client’s motive
Client must have intent
