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Professional Responsibility
University of North Carolina School of Law
Conley, John M.

Professional Responsibility Outline
 
 
Basic Principal of Confidentiality
1)      Lawyers are obligated to keep clients’ secrets.  Duty expressed in:
i)        The ethical rules;
ii)      The law of agency;
iii)    And in the law of evidence, i.e. attorney-client privilege. 
2)      Attorney-Client Privilege
i)        “Covers a communication between lawyer and concerning proving legal advice, and which is subject to reasonable efforts to keep it between lawyer and client.”
ii)      In force during ethics discipline and malpractice suits
iii)    MUCH MORE NARROW THAT CONFIDENTIALITY REQUIRES (only communications between lawyer and client for purpose of legal aid)
iv)    Elements
(1)   Communication
(a)    Includes any form of communication (face-face, letter fax, email, IM, memo, phone call, etc.)
(2)   Privileged persons
(a)    Includes lawyers, secretaries, paralegals, and investigators
(b)   A lawyer’s or secretary’s notes of a privileged conversation
(c)    Interpreters (or anyone else used to facilitate communication)
(d)   Someone there providing psychological support during lawyer-client interview (Parents of a minor/ Psychologist/ Guardian)
(e)    Communications with perspective clients are privileged
(f)    Must be a client
(i)     Sometimes difficult to tell w/ corporate clients
(3)   Communication in confidence
(a)    client must reasonably believe that the communication is confidential
(b)   Private area as oppose to crowded or public
(4)   Communication for the purpose of seeking legal assistance
(a)    Business advice is not legal advice
(b)   Must make it clear that client is seeking legal advice
(c)    Billing is not required
(d)   Only part of conversation that relates to the legal advice is privileged*
(e)    From lawyer to client and visa versa
(5)   Communication with an attorney is privileged, but the underlying facts are not.  à LAWYER MUST TALK IF THEY WITNESSED THE CRIME
(a)    May be protected by different privilege, such as the privilege against self-incrimination
 
v)      Documents – Work Product Doctrine ()
(1)   Document status of privilege or work product is effectively determined at the time of creation
(a)    If the document was ORIGINALLY business or personal letter, then it remains that way even if you put the letter in the clients file
(b)   Document—rather than try to reference these things to you, I just want you to look at the documents that were originally business documents and see if these is legal.
(c)    NO because originally documents made for business purposes
(d)   unless the lawyer demonstrates that their selection and compilation of the documents reflects their litigation strategyà even then it is a maybe
(2)   If the documents were made for purposes other than to communicate information with the lawyer, they are not privileged (but can be W/P)
(a)    Memo to client is not covered under the attorney-client privilege, but is a document in prepared in anticipation of litigation by or for the client or an attorney.
(3)   Applies to documents that a lawyer/ or client/ or client agent prepares or collects while working on pending litigation or on a matter in which the lawyer knows that a lawsuit is about to be filed
(a)    Covers documents & tangible things – “Anything prepare for or in anticipation of litigation by or for a client or an attorney.”  
(b)   This includes documents made by the company even without an attorneyà AS LONG AS IN ANTICIPATION OF LITIGATION BY OR FOR A CLIENT.
(c)    This is a very broad privilege!
(d)   If certain information would have been collected routinely but was also collected in anticipation of litigation, most courts will deny protection for that information
(4)   immunity – only presumption
(a)    Overcome presumption by showing of reasonable necessity that you cannot satisfy by any other means (witness is dead)
(b)   If the judge allows ità judge will redact as to protect the theories or mental impressions of the lawyer
 
vi)    Client Identity – Privilege does not protect client identity: does not protect the name, address, or whereabouts of a client who receives tax advice, nor the amount of fees paid of the advice
vii)  Waiver: if a you voluntarily or carelessly give communication to 3rd party, then waiver.  You cannot undue waiver AND there is no appeals process
(1)   Express waiver by client (or lawyer is allowed)
(2)   Waiver by inaction (you have to affirmatively claim privilege)
(a)    You cannot get cat back in the bag/ no appeal can reverse the waiver
(3)   Waiver by revealing privileged communication to a non-privileged person
(a)    Confidences made to members of the clergy are privileged as well as confidential communications to physicians, spouses, and in many states, psychologists  à NOT parents
(b)   Lawyer doesn’t have power to waive, the client does.  Unless consented to, lawyers slip of tongue won’t mess it up
(i)     But, if lawyer lets out information in a social setting, then it is waived according to teacher.
(c)    Waiver requires a voluntary act by the client or by an authorized agent
(4)   Waives if put privileged info at issue (sue the lawyer)
(5)   If client discloses part of a conversation, then probably waived
viii)            Common Privilege: Include situations where the lawyers is seeing clients jointly or separately as long as agreement to participate in common representation
(1)   can have multiple lawyers representing multiple clients and there is a common defense enterprise (allowe

h his or her job
iii)    Scope of client-lawyer confidentiality—Comment 3
(1)   The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from lawyers through compulsion of law (discovery!). 
(a)   Applies to ALL information relating to representation whatever its source
(i)     Except for info that is generally known.
(ii)   Regardless of whether it was received by client or another source. 
(2)   Attorney-client privilege and work-product apply in judicial proceedings involving calling of witnesses and producing evidence.
iv)    Prohibition—Comment 4
(1)   Applies to disclosures by a lawyer that do not in themselves reveal protected info but could reasonably lead to discovery of info by 3rd person. 
(2)   Use of a hypo:  can do this 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. 
(3)   Includes disclosures about the fact that you’re representing the client, and if client consents, you cannot disclose confidential information
v)      Implied authorization—Comment 5
(1)   Client cannot object. 
(2)   Ex:  a lawyer may be impliedly authorized to admit a fact that cannot be properly disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. 
(3)   Does NOT apply w/in a law firm.   Unless client specifies that matter is confined to certain attorneys. 
vi)    Repercussions
(1)   Could be fired by client or refuse to pay
(2)   Professional discipline
(3)   Liable in tort or contract for negligent or intentional breach of duty
(4)   Disqualified from representation of one or more clients
(5)   Enjoined by a court from further revelation
 
4)      Exceptions=Rule 1.6(b)— (Exceptions permit, they do not require)
a)      “A lawyer may, NOT MUST, but MAY reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1)   First, you have to talk them out of it!
(2)   If disclosed, you have to disclose as narrowly as possible
ii)      to prevent reasonably certain death or substantial bodily harm;
(1)   does not require act to be criminal