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Professional Responsibility
Wayne State University Law School
Henning, Peter J.

Professional Responsibility

Henning

Winter 2017

Duty of Confidentiality and the Attorney-Client Privilege

Rule 1.6: Confidentiality of Information

(A) Confidence refers to information protected by the client-lawyer privilege under applicable law and secret refers to other information gained in the professional relationship that the client had requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.
(B) Except when permitted under paragraph (c) a lawyer shall not knowingly:

Reveal a confidence or secret of a client
Use a confidence or secret of a client to the disadvantage of the client or
Use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents under full disclosure.

(C) A lawyer many reveal -(discretionary)

Confidences and secrets to the extent reasonably necessary to rectify the consequences of a client’s illegal or fraudulent act in the furtherance of which the lawyer’s services have been used
The intention of a client to commit a crime and the information necessary to prevent the crime.
Confidences or secrets necessary to establish or collect a fee or to defend the lawyer or the lawyers employees or associates against accusations of wrongful conduct.
Note: Disclosure does not waive privilege if it applies to the communication (1-2).

Attorney Client Privilege

A rule of evidence that prohibits a lawyer from being compelled by judicial process to disclose what a client said if:

Information involved a confidential communication (no 3rd party present).
With one’s attorney or agent of the attorney
For the purpose of seeking legal advice

The privilege doe not protect the underlying facts only the content of the communication with counsel.

Rationales for the Privilege

Enhances the free exchange of information between clients and lawyers by creating a relationship of trust will allow lawyers to counsel clients to act properly.
Dignity and autonomy: it is a special relationship similar to the doctor patient and priest-penitent relationship, so that law should respect it.
Constitutional protection – in a criminal case
An economic monopoly to protect lawyers financial positions – lawyers sell privilege

Communication Not Privileged

Waiver – through voluntary revelation to any third party either at the time of the communication or in a subsequent disclosure (except present to 1.6 [c])

Scope of Wavier: Federal Rules of Evidence 502 (a)

Disclosure made in a federal proceeding or to a federal office or agency
When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney client privilege or work product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:

The waiver is intentional
The disclosure and undisclosed communication or information concern the same subject matter and
They ought in fairness to be considered together.

Client identity and fee information – not privileged because it does not involved a communication for legal advice.
Government attorney – no privilege for a government attorney providing legal advice to a government employee (like the president)

Crime-Fraud Exceptions

A judicial finding that client used the lawyer’s services to engage in criminal or fraudulent conduct so the communication was not protected by the privilege and lawyer may be compelled to disclose.
Need not prove the crime, only that it reasonably appears the communication was f

o the law, but also to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.

Rule 1.0(b)

Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. The rules do not however, give rise to a cause of action for 1) enforcement of the rule or 2) for damage caused by failure to comply with an obligation or prohibition imposed by a rule. In a civil or criminal action the admissibility of the rules of professional conduct is governed by the Michigan rules of evidence and other provisions of law.

Rule 1.2 Lawyer-Client Responsibility

A lawyer shall abide by a clients decision whether to accept an offer of settlement or mediation evaluation of a matter. In a criminal case, a lawyer shall abide by the client’s decisions, after consultation with the lawyer, with respect to a plea to be entered, whether to waive jury trail and whether the client will testify. In representing a client a lawyer may where permissible exercise professional judgment to waive or fail to assert a right or position of the client.
A lawyer may limit the objectives of the representation if the client consents after consultation.
Comment: Sometimes a clear distinction cannot be drawn and will become a joint undertaking. This means the lawyer should assume responsibility for technical and legal tactical issues, but should defer to client regarding expenses and concern for third party.