Privilege And Confidentiality Outline

1. 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:

   • 6^th amendment: speedy and public trial by impartial jury in criminal prosecutions, D be informed of cause of accusation, confronted with witness

   • 1^st 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)

  • The influence of Sarbanes-Oxley (SOX)

• Task Force on Corporate Responsibility (2003)

• Ethics 20/20 Commission (2009)

  • 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

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

  • 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

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...

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