Select Page

Professional Responsibility
Wayne State University Law School
Rodwan, Gail

Ø Confidentiality (Rule 1.6): want client to feel like they can trust the lawyer and tell them the whole truth of the issue and in turn the lawyer will be honest and truthful
o Cant reveal a confidence or secret of the client or use it to their disadvantage or let it benefit a 3rd party (i.e. cant go buy land next to where client is building a shopping center to be able to profit)
§ Can waive this right (client)
§ Confidence: work product in judicial proceedings
§ Secret: other info gained in professional relationship- stuff that is embarrassing or detrimental to client if revealed
o Attny-client relationship: based on rules of evidence
§ Only protect confidences when: (never protects secrets)
· Appropriate attny-client relationship existed at the time of communication
· Appropriate person claimed the privilege (client-attny only can assert it on clients behalf)
· There must be a verbal or communicative act that is made in confidence NEVER WAIVED
§ No gov’t attny client privilege can be asserted to avoid a federal prosecutor’s grand jury subpoena
· Their immune from civil and criminal liability (specifically white house) and so attny doesn’t need to protect client
· Makes them turn to independent counsel and not rely on lawyers provided
§ How it differs from duty of confidentiality
· May be asserted in judicial-like proceedings where lawyer is asked to produce evidence concerning client
o DOC: extends to all matters of client representation
· Covers only communications between client and attny
o DOC: covers all info from any source regarding representation
· Requires privacy of communication (DOC does not)
· Arises only in litigation
o DOC: covers disclosure and use
· Lost if 3rd party is present (DOC expectation of confidence remains)
o There are exceptions to the rule of what confidences can be revealed:
§ Client intended to commit a crime/fraud (discretionary for crime NOT for fraud)
· Client intended to commit crime/fraud
· Attny can knowingly or unwittingly participated
· Conversation was in furtherance of crime/fraud
· Attny uses false information from client and presents it to the court
· ABA is different b/c can only reveal to prevent death or imminent serious bodily harm- fraud that harms financial interests of another
§ If the client waived the confidence privilege
· Can do this by bringing the issue into litigation or turn it over to another agency
· Not waived if communication is made to enable the lawyer to render professional legal services
o i.e. consulting an expert witness
§ When required by law/court/these rules
· Also when info has become general knowledge
§ To collect a fee
§ To defend against accusations of wrongful conduct (also can defend employees)
· Has to have reasonable belief that it is pending and can reveal before charged
o This does not end when relationship terminates (either by withdrawal or legal end of matter)
§ Need to keep file for FIVE (5) YEARS after relationship is ended- when retiring need to give clients reasonable notice for them to get new attny and get their file
o If hear confidence from 3rd party it is still something that cannot be disclosed because it was learned during representation
o Can be disciplined if your employees reveal confidences (need to supervise and exercise reasonable care when selecting and training employees)
§ Will be disciplined if knew of the revelation of secrets and did nothing to mitigate or avoid the consequences
o Can tell colleagues in the same firm the client confidences as long as doesn’t break any screen or client specifically says you cant
o Swindler v Berlin 55 Privilege last through death. President’s lawyer’s client commits suicide and still can’t get it. Fact that client is not x client not matter either.
Ø Competence (Rule 1.1): legal knowledge, skill and preparation of a reasonable lawyer
o 3 areas of competence
§ 6th amend ineffective assistance of counsel
§ malpractice
§ model rules
o 4 theories that clients bring against attny
§ negligence (most common)
§ fraud/misrepresentation
§ breach of contract (SOL period is longer)
§ breach of fiduciary duty
o Cant handle cases if know yo

t to the rendering of legal advice to the corporation.
· USSC: Control group test (only protect the communications Of employees that control the org) is bad, discourages client atty communication. Use the subject matter test (protected if relevant to rendering of legal advice). Thus, Can question employees but can’t have docs.
o No duty to accept representation (in America can refuse to take people on as clients- unless appointed counsel by ct)
§ Reject it if : would violate laws or ethics, not competent, requires bringing of frivolous claims
o Forming the attorney-client relationship
§ Traditional way: someone comes to office, draft a retainer, sign the retainer, and pay a fee
· Perez v Kirkland: attny came to Perez (co’s truck driver) and told him “we are your lawyers tell us everything” and he detrimentally relied on their statements. An agreement of representation may be implied through the actions of the parties. IF SAY YOUR THEIR LAWYER THAN COURT WILL TREAT YOU AS SUCH
§ Ongoing relationship: always someone’s attny for any legal matter they may have
§ Court assignment: ct assigns someone to represent a defendant (usually with indigent criminals)
o Permissive and mandatory withdraw (Rule 1.16): clients can terminate for any reason and at any time while an attny must have a reason found in 1.16
§ Cant represent someone if it results in a violation of PRE rules, or the lawyers physical/mental capacity interferes with effective representation, or the lawyer is discharged by the client
§ Can get out of representation if withdrawal doesn’t materially adversely affect the client or if:
· Client wants to use attny for furtherance of crime/fraud