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Privilege And Confidentiality Outline

LLM Law Outlines > Professional Responsibility Outlines

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Regulation of Lawyers

The exam will have two essay questions, both will have a word limit. Monday, December 17 th, 10am
Chapter 1 & pp.19- 65
Where do "ethics" rules come from?

1. US Constitution:
o 6th amendment: speedy and public trial by impartial jury in criminal prosecutions, D
be informed of cause of accusation, confronted with witness

1st amendment

2. Courts

3. Legislature
 Courts v. legislatures - Separation of powers

4. Congress v. state authority

the Supremacy Clause: federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land

5. Bar influence: 1) ABA; 2) State bars
History of ABA Model Rules (with an emphasis on Model)
- Canons of Legal Ethics (1908) - lawyers are disciplined for violating ethic rules
- MODEL Code of Professional Responsibility (1970)
- Kutak Commission (1983)
- MODEL Rules of Professional Conduct

Adopted by many states
- Ethics 2000 Commission (also known as E2K) (2002)
o The influence of Sarbanes-Oxley (SOX)
- Task Force on Corporate Responsibility (2003)
- Ethics 20/20 Commission (2009)
o Review of the Model Rules in the context of globalization and rapid advances in information technology
 Internet allows mobility and specialization
 NY qualified lawyers can only advise on other state law if located in NY
physically, but not outside of NY
Federal System / National Practice
- Variation among state professional conduct rule

Especially on confidentiality exceptions, conflicts, lawyer advertising
- A paradox: unauthorized practice of law

Local licensing and rulemaking variations

But increased national and international practice

And the effect of technology on cross-border practice

1 Model Rules
Rule 1.1
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the representation.
- Rare, would be through civil litigation, e.g. $ damages
- Often due to overloaded work
- Client relationship can be formed once legal advice is given, no matter how casual, need not be paid
What are the duties of competence?
- Rule 1.1 "legal knowledge, skills, thoroughness and preparation reasonably necessary for the representation

Incompetence: ignorance, inexperience, neglect, lack of time, high volume
- Lawyer has a duty to decline more work than he can competently handle

But may be difficult for junior lawyers  assigning lawyer has duty not to assign more work than a subordinate can perform competently (ABA Opinion 06-441)
- Incompetence can lead to malpractice liability Ch13A
o Rarely leads to discipline, unless a pattern of neglect

Exception in re Pegram - lawyer accepted a felony case without having criminal law experience, charged $2k for representation knowing he is unable to try the case  reprimanded
- Sixth Amendment's requirement of competence - applies nationwide

Note, state courts also determined test for competence as an ethical duty and in malpractice cases
- Malpractice, discipline and sixth amendment guarantee are enforced in retrospect (after lawyer found incompetent)
- Attempt to reduce risk of incompetence prospectively, by imposing education and exams for admission to the bar

Rule 1.3 A lawyer shall act with reasonable diligence and promptness in representing a client.
Confidentiality of Information
- Derived from agency and fiduciary duty law; professional conduct rules 1.6, 1.8(b), 1.9(c)
- Rule 1.6(a) defines category of info that

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).
- Lawyer may not voluntarily reveal unless exception or given (implied) consent
- 1.8(b) cannot use such info about a current client to his disadvantage
- Rule 1.9(c)(2) cannot reveal such info about a former client unless there is an exception
- 1.9(c)(1) cannot use such info about a former client to the client's disadvantage, unless generally known
- Confidential whether the source is the client (+ also privileged) or a stranger (not privileged)
- Privileged info will also be confidential, but confidential info is not necessarily privileged

But privileged still necessary

If info is privileged, lawyer and client can refuse to disclose it when called upon by court

If info is confidential but not privileged, court can call a subpoena and order it's disclosure

2 What are the duties of confidentiality?
- Prez v Kirk & Carrigan: Prez's statement was taken by D, who turned the statement against him

Agreement to form attorney-client relationship may be implied from the conduct of the parties

Statement should be kept confidential despite some unnecessary third parties were present

Did not matter that D lawyer had only a preliminary meeting with Perez  the attorney-client privilege and duty of confidentiality protect info gained from a potential client, even if no retention ensues.
- Confidential info: lawyer's confidentiality duties derive from agency and fiduciary duty +
professional conduct rules

R 1.6(a) defines info relating to the representation of a client
- Depending on the jurisdiction, but in most place, confidentiality duty in Model Rules continues forever, even after client's death, unless exceptions applies
Rule 1.0 (e)
"Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Rule 1.6(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 [completed] 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 court order; or
(7) to detect and resolve conflicts…
Rule 1.6 comment [3]
- The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a clientThe rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.

3 The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.A lawyer may not disclose such information except as authorized or required by the Rules of Professional
Conduct or other law.1.6(b)(1) Example "My Client is HIV Positive"
o Facts: A asked lawyer to defend her boyfriend Ken. At meeting with Ken, Ken admitted he was HIV positive, but asked lawyer not to tell the judge if Anna might find out.
o Can the lawyer warn Anna?
 Client-lawyer relationship established between Ken and the lawyer
 Though retained by Anna, the lawyer owes duty of loyalty to Ken. Third party paying doesn't allow lawyer to tell the payer
 FRE 503 Privileged info (everything privileged is confidential)
o What can the lawyer do
 Whether exception 1.6(b)(1) applies: prevent substantial bodily harm +
reasonably certain
 Cannot ask Ken whether he is having unprotected sex (falls outside criminal representation)
 Rule 2.1: lawyer may refer to moral, social considerations…
 If reasonable judgment is exercised, lawyer would not be disciplined
 Anna may break up with him and no longer pay his legal fees

Attorney-Client Privilege
Unreacted Federal Rule of Evidence 503:
- A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client,
o (1) between himself or his representative and his lawyer or his lawyer's representative, or

(2) between his lawyer and the lawyer's representative, or

(3) by him or his lawyer to a lawyer representing another in a matter of common interest

(4) between representative of the client, or

(5) between lawyers representing the client
- Communications can be oral, written communication between lawyer and client
- Source of info must be from client [c.f. r.1.6]
- C.f. r. 1.6 permits disclosure if under court order
- Based on the law of evidence: protects communication between a lawyer/ his agent and a client/ his agent
- Aim: to promote trust by client on lawyers, create good reputation, provide better admin
& justice
How does a person, entity or group become a client?
- By case law (not rules)
- Majority of lawyer-client relationship is formed by contract, which can be implied.
- Attorney Grievance Comm'n of Md v Kreamer attorney-client relationship is formed when

1. A person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and

2. The lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the service


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