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Professional Responsibility
University of North Carolina School of Law
Ratliff, Alice A.

 
Professional Responsibility Course Outline Ratliff Fall 2013
 
I.                    Client Lawyer Relationship
a.       The Duty to Protect Client Confidences
                                                               i.      Rule 1.6—Confidentiality of Information
 
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
 
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably 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; 
 
(6) to comply with other law or a court order; or
 
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. 
 
(c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
 
                                                             ii.      Information that must be protected as Confidential
1.       All information relating to the matter on which the lawyer is representing the client, except information that is generally known
2.       Personal information relating to the client that the client would not want disclosed
3.       Information learned from the client, and information learned from interviews, documents, photographs, observations, and other sources
4.       Information relating to the representation acquired before the representation begins ( such as during preliminary consultation)
5.       Notes or memoranda that the lawyer creates relating to the matter
b.      NOTES
                                                               i.      This prohibition 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 party.
1.       Use of a hypothetical to discuss issues relating to the representation is permissible as long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.
                                                             ii.      The restatement standard for disclosure of client information is less strict than the bright line test imposed by the ABA Model rules
1.       Under this standard it is ok to informally speak about a client and the matter as long as the disclosure does not reveal the client’s identity, or if it does lead to revelation of the client’s identity, so long as the disclosure would give rise to a “reasonable prospect” of harm to the client’s interest
c.       Exceptions to the Duty to Protect Confidences
                                                               i.      Client Consent
1.       Client consent releases the lawyer from liability for the revelation of confidences, but only to the extent that the lawyer has given the client full information about the risks of disclosure.
2.       Representation of Co-clients—Clients may agree to openly share all information, or they may make the opposite arrangement and the lawyer must keep all confidences between the clients.  In the latter arrangement, the lawyer may have to withdraw if he learns something from one that would have adverse effects on the other.
                                                             ii.      Revelation of past criminal conduct
1.       A lawyer should protect as confidential most information related to clients’ past criminal activity.
                                                            iii.      The Risk of future injury of death — Rule 1.6(b)(1)
1.       The rule always allows a lawyer to reveal confidential information to prevent reasonably certain death or substantial bodily harm.
a.       It doesn’t matter if the harm will be perpetrated by the client or another person.  What matters is what the lawyer believes to be the degree of possible harm and how likely the lawyer believes it is that the harm will occur
                                                                                                                                       i.      Reasonably certain to occur
                                                                                                                                     ii.      Present or substantial threat
2.       Some state ethics codes impose an affirmative duty on the lawyer to disclose confidences in this situation.  ABA Rules are permissive.
                                                           iv.      Client Frauds and Crimes that Cause Financial Harm — Rule 1.6(b)(2)
1.       Under rule 1.2 (d) a lawyer is prohibited from advising or assisting clients’ crimes and frauds.
a.       A lawyer may not continue to assist the client in activities he originally supposed were legal but then discovered were criminal or fraudulent.  The lawyer must withdraw from representation of the client.  See Rule 1.16(a).
b.      Definitions of fraud differ between the ethics codes (Rule 1.0(d) of the ABA Model Rules) and torts, criminal law, and contracts.  A lawyer must understand what conduct qualifies as fraudulent in order to comply with the rules.
                                                             v.      Revelation of confidences to prevent, mitigate, or remedy harm to others — Rule 1.6(b)(3)
1.       This rule is similar to Rule 1.6(b)(2) discussed above, but (b)(2) refers to a client who plans to commit or is committing a crime or fraud, and (b)(3) refers to a past crime or fraud.
2.       There are three requirements for this rule to allow disclosure
a.       Reasonable certainty that the client’s conduct will result in substantial financial injury or substantial injury to the property of another person;
b.      The client is using or has used the lawyer’s services in committing the act(s); and
c.       The purpose of revealing confidences is to prevent the criminal or fraudulent act or to prevent, mitigate, or rectify the harm resulting from the act(s)
3.       Rule 1.6(b)(3) seems to be permissive in allowing the lawyer to use discretion about the revelation of confidences, but rule 4.1 compels revelation in some cases.  Where a lawyer's failure to reveal would constitute “assisting a client’s crime or fraud”, Rule 4.1 requires disclosure.
a.       The rule states that a lawyer shall not knowingly fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
4.       Other rules allowing or requiring revelation of criminal or fraudulent conduct:
a.       Rule 8.4— Dishonesty
b.      Rule 1.13—Duty of a lawyer representing an organization to call attention to crimes and frauds
                                                                                                                                       i.      Requires the lawyer to call the attention of corporate management to the wrongful conduct
                                                                                                                                     ii.      If senior officials do not address the conduct the lawyer is permitted to reveal information to the extent necessary to prevent substantial injury to the organization.
c.       Rule 3.3—Duty to reveal client crimes or frauds to tribunals
d.      Rule 1.16(a)-(b)
                                                                                                                                       i.      (a

and political factors that may be relevant to the client's situation.
 
2.       Other Rules to consider
a.       8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation
b.      1.4 duty to keep client informed implies a duty to give accurate rather than false information.
3.       Some things that are technically lies may still be justifiable, such as white lies, lies to protect people, or lies to protect your privacy.
4.       Consider whether the subject matter is trivial or private?  Is anyone harmed by the lie?  Is the purpose to protect someone?
                                                           iv.      Communication—
1.       Rule 1.4—
(a) A lawyer shall:
 
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
 
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
·         Gives the lawyer some leeway in determining “means” as opposed to “objectives” which are determined by the client; lawyers still must consult with client about the means.
 
(3) keep the client reasonably informed about the status of the matter;
·         status includes significant developments affecting the timing or substance of the representation
 
(4) promptly comply with reasonable requests for information; and
·         if the lawyer cannot respond promptly he should explain when a response may be expected
·         phone calls should be returned or acknowledged
 
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
 
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
·         Lawyer should give the client enough information to “participate intelligently” in decisions about objectives and means; lawyer will not be expected to describe trial or negotiation strategy in detail
 
                                                             v.      Contractual Reduction of a lawyer’s duties
1.       Under certain conditions a lawyer and a client may contract to lower the expectations on the lawyer in exchange for a reduction in the fee for representation.
a.       Rule 1.2(c) allows a lawyer to limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.
g.       Scope of Representation and Allocation of Authority Between Client and Lawyer
 
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
 
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.