attorney client privilege evidentiary privilege

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					Professional Responsibility
         Law 115

      Wed., Sept. 26
• Compulsory Limitations on Scope –
  counseling or assisting crime/fraud
• 1.2(d)
• A lawyer shall not counsel a client to engage,
  or assist a client, in conduct that the lawyer
  knows is criminal or fraudulent, but a lawyer
  may discuss the legal consequences of any
  proposed course of conduct with a client and
  may counsel or assist a client to make a good
  faith effort to determine the validity, scope,
  meaning or application of the law.
• Comment 10 to 1.2
• A lawyer may not continue assisting a client in
  conduct that the lawyer originally supposed
  was legally proper but then discovers is
  criminal or fraudulent. The lawyer must,
  therefore, withdraw from the representation
  of the client in the matter. See Rule 1.16(a). In
  some cases, withdrawal alone might be
  insufficient. It may be necessary for the lawyer
  to give notice of the fact of withdrawal and to
  disaffirm any opinion, document, affirmation
  or the like. See Rule 4.1.
• R. 4.1
In the course of representing a client a lawyer
  shall not knowingly:
(a) make a false statement of material fact or
  law to a third person; or
(b) fail to disclose a material fact to a third
  person when disclosure is necessary to avoid
  assisting a criminal or fraudulent act by a
  client, unless disclosure is prohibited by Rule
• Permissive rejection of prospective clients
(a) Except as stated in paragraph
(c), a lawyer shall not represent a
client or, where representation has
commenced, shall withdraw from
the representation of a client if:
(3) the lawyer is discharged.
(a) Except as stated in paragraph (c), a lawyer
  shall not represent a client or, where
  representation has commenced, shall withdraw
  from the representation of a client if:
(1) the representation will result in violation of
  the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition
  materially impairs the lawyer's ability to
  represent the client; or
(3) the lawyer is discharged.
Permissive withdrawal
1.16(b) Except as stated in paragraph (c), a
  lawyer may withdraw from representing a
  client if:
(1) withdrawal can be accomplished without
  material adverse effect on the interests of the
• (2) the client persists in a course of action
  involving the lawyer's services that the lawyer
  reasonably believes is criminal or fraudulent;
• 1.16(b)(3) the client has used the lawyer's
  services to perpetrate a crime or fraud;
• (4) the client insists upon taking action that
  the lawyer considers repugnant or with which
  the lawyer has a fundamental disagreement;
• (5) the client fails substantially to fulfill an
  obligation to the lawyer regarding the lawyer's
  services and has been given reasonable
  warning that the lawyer will withdraw unless
  the obligation is fulfilled;
• (6) the representation will result in an
  unreasonable financial burden on the lawyer
  or has been rendered unreasonably difficult
  by the client; or
• (7) other good cause for withdrawal exists.
• 1.16(d)
Upon termination of representation, a lawyer
  shall take steps to the extent reasonably
  practicable to protect a client's interests, such
  as giving reasonable notice to the client,
  allowing time for employment of other
  counsel, surrendering papers and property to
  which the client is entitled and refunding any
  advance payment of fee or expense that has
  not been earned or incurred. The lawyer may
  retain papers relating to the client to the
  extent permitted by other law.
• Problem of organizational clients
• Rule 1.13 Organization As Client
(a) A lawyer employed or retained by an
  organization represents the organization
  acting through its duly authorized
• 1.13(f) In dealing with an organization's
  directors, officers, employees, members,
  shareholders or other constituents, a lawyer
  shall explain the identity of the client when
  the lawyer knows or reasonably should know
  that the organization's interests are adverse to
  those of the constituents with whom the
  lawyer is dealing.
• 1.13(b) If a lawyer for an organization knows
  that an officer, employee or other person
  associated with the organization is engaged in
  action, intends to act or refuses to act in a
  matter related to the representation that is a
  violation of a legal obligation to the
  organization, or a violation of law that
  reasonably might be imputed to the
  organization, and that is likely to result in
  substantial injury to the organization, then the
  lawyer shall proceed as is reasonably necessary
  in the best interest of the organization.
• Unless the lawyer reasonably believes that it is
  not necessary in the best interest of the
  organization to do so, the lawyer shall refer
  the matter to higher authority in the
  organization, including, if warranted by the
  circumstances to the highest authority that
  can act on behalf of the organization as
  determined by applicable law.
You are counsel for a small corporation with
three shareholders. Two of the
shareholders, who are also officers, ask you
to draw up a contract between the
corporation and what you discover are
entities owned by the officers. This is illegal
self-dealing, but neither crime nor fraud.
May you draw up the contracts?
Illus. 2: Lawyer represents Client, a closely held corporation, and
not any constituent of Client. Under law applicable to the
corporation, a majority shareholder owes a fiduciary duty of fair
dealing to a minority shareholder in a transaction caused by
action of a board of directors whose members have been
designated by the majority stockholder. The law provides that
the duty is breached if the action detrimentally and substantially
affects the value of the minority shareholder's stock. Majority
Shareholder has asked the board of directors of Client,
consisting of Majority Shareholder's designees, to adopt a plan
for buying back stock of the majority's shareholders in Client. A
minority shareholder has protested the plan as unfair to the
minority shareholder. Lawyer may advise the board about the
position taken by the minority shareholder, but is not obliged to
advise against or otherwise seek to prevent action that is
consistent with the board's duty to Client.
The same facts as in Illustration 2, except
that Lawyer has reason to know that the
plan violates applicable corporate law and
will likely be successfully challenged by
minority shareholders in a suit against
Client and that Client will likely incur
substantial expense as a result. Lawyer
owes a duty to Client to take action to
protect Client, such as by advising Client's
board about the risks of adopting the
• (e) A lawyer who reasonably believes that he or
  she has been discharged because of the lawyer's
  actions taken pursuant to paragraphs (b) or (c),
  or who withdraws under circumstances that
  require or permit the lawyer to take action under
  either of those paragraphs, shall proceed as the
  lawyer reasonably believes necessary to assure
  that the organization's highest authority is
  informed of the lawyer's discharge or
–duty of confidentiality
  • applies everywhere
  • keeps lawyer from divulging a wide
    range of information relating to
  • BUT must give it up if required by court
    (in discovery)
–attorney client privilege
  • evidentiary privilege (reason to refuse to
    divulge in discovery – including if asked
    by court)
  • much more limited
  • does not protect information
•   Attorney-Client Privilege
•   communications are privileged
•   if made between privileged persons
•   in confidence
    – reasonable belief no one will learn of contents
      except privileged person
• for the purpose of obtaining or providing legal
             Privileged persons
•   client
•   prospective client
•   agents facilitating communication
•   agents facilitating lawyers representation
• A lawyer’s daughter, who was just involved in
  a hit and run accident, asks the lawyer
  whether she should go to the police. Is this
  communication privileged?
• A tax lawyer’s son gives her the information
  she needs to fill out his 1040EZ personal
  income tax form. Are these communications
• After few hours after murdering someone, a
  client goes to his lawyer and tells him about
  the murder, in order to allow the lawyer to
  undertake his defense if he is arrested. During
  the meeting, the client’s hands are shaking
  and have specks of blood on them. Are the
  facts that the client’s hands are shaking and
  have blood on them privileged?
• A defendant in a negligence case
  reveals to his lawyer that he was
  looking the other way when he hit
  the plaintiff.
• May the client claim the privilege
  when he is served with an
  interrogatory asking for the content
  of this conversation?
May the client claim the privilege if
the interrogatory asks whether he
was looking the other way during
the accident?
Assume the client insists on
testifying that he was not looking
the other way during the accident

What must the lawyer do?
Client says to his lawyer that he
though he was driving recklessly
during the accident

After consultation the lawyer
concludes that client is mistaken
and that he was exercising due care
• A client visits a lawyer to discuss the
  incorporation of his business. Present at the
  meeting is one of the client’s employees, the
  client’s daughter (whom he is babysitting at
  the time), and the lawyer’s secretary. Are the
  communications privileged?
Fee Agreements, Client Identity
Client asks lawyer to pay back taxes
    to IRS for client anonymously

 Can lawyer be required to testify
      about client’s identity?
Corporate Attorney-Client Privilege
Upjohn v. United States
     (U.S. 1981)
• Who are the constituents that count for the
• Upjohn
  – Court of Appeals’s Theory
     • Control group
  – Supreme Court’s Theory
     • All employees
“[The Court of Appeals’s] view, we think, overlooks
the fact that the privilege exists to protect not only
the giving of professional advice to those who can
act on it but also the giving of information to the
lawyer to enable him to give sound and informed
zone of silence?
One gas station is a sole proprietorship
and the other is incorporated. An
accident occurs in each of the gas
stations that is observed only by an
employee. Is the communication
between the gas station's lawyer and
the employee privileged when the gas
station is a sole proprietorship? Is the
communication privileged when the gas
station is incorporated?
§ 73. The Privilege For An Organizational Client
When a client is a corporation, unincorporated association,
partnership, trust, estate, sole proprietorship, or other for-
profit or not-for-profit organization, the attorney-client
privilege extends to a communication that:
(1) otherwise qualifies as privileged under §§ 68-72;
(2) is between an agent of the organization and a privileged
person as defined in § 70;
(3) concerns a legal matter of interest to the organization;
(4) is disclosed only to:
(a) privileged persons as defined in § 70; and
(b) other agents of the organization who reasonably need to
know of the communication in order to act for the
After receiving the questionnaires,
Upjohn management emailed them
to all Upjohn employees.
governmental attorney-client
attorney-client privilege in the
 representation of law firms
problems of joint representation of
a corporation and a constituent of
         the corporation
Representing joint clients
• Restatement § 75. The Privilege Of Co–Clients
• (1) If two or more persons are jointly represented by
  the same lawyer in a matter, a communication of
  either co-client that otherwise qualifies as privileged
  … and relates to matters of common interest is
  privileged as against third persons, and any co-client
  may invoke the privilege, unless it has been waived
  by the client who made the communication.
• (2) Unless the co-clients have agreed otherwise, a
  communication described in Subsection (1) is not
  privileged as between the co-clients in a subsequent
  adverse proceeding between them.
§ 76. The Privilege In Common–Interest Arrangements
(1) If two or more clients with a common interest in a
litigated or nonlitigated matter are represented by
separate lawyers and they agree to exchange information
concerning the matter, a communication of any such
client that otherwise qualifies as privileged under §§ 68-
72 that relates to the matter is privileged as against third
persons. Any such client may invoke the privilege, unless
it has been waived by the client who made the
(2) Unless the clients have agreed otherwise, a
communication described in Subsection (1) is not
privileged as between clients described in Subsection (1)
in a subsequent adverse proceeding between them.
In re Grand Jury Subpoena
       (1st Cir. 2001)
First, they must show they approached [counsel] for the
purpose of seeking legal advice. Second, they must
demonstrate that when they approached [counsel] they
made it clear that they were seeking legal advice in their
individual rather than in their representative capacities.
Third, they must demonstrate that the [counsel] saw fit to
communicate with them in their individual capacities,
knowing that a possible conflict could arise. Fourth, they
must prove that their conversations with [counsel] were
confidential. And, fifth, they must show that the substance
of their conversations with [counsel] did not concern
matters within the company or the general affairs of the
work product privilege
R 26(b)(3)
(A) Documents and Tangible Things. Ordinarily, a party may
not discover documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another party
or its representative (including the other party’s attorney,
consultant, surety, indemnitor, insurer, or agent). But, subject
to Rule 26(b)(4), those materials may be discovered if:
        (i) they are otherwise discoverable under Rule 26(b)(1);
        (ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
 (B) Protection Against Disclosure.
If the court orders discovery of
those materials, it must protect
against disclosure of the mental
impressions, conclusions, opinions,
or legal theories of a party’s
attorney or other representative
concerning the litigation.
• Intersection of privilege against self-
  incrimination and attorney-client privilege
Client says to lawyer “I did it”
Lawyer is asked whether his client
said he did it
Lawyer cannot assert client’s
privilege against self-incrimination
    - lawyer is not giving self-
incriminating testimony
BUT lawyer can assert attorney-
client privilege
problem of documentary evidence
     in the hands of a lawyer
• assume incriminating material is given to the
  – Will be protected under attorney-client privilege
    to the extent that it would be protected under the
    privilege against self-incrimination in the hands of
    the client
  – If not protected under attorney-client privilege in
    the hands of the client, then no attorney-client
    privilege by giving to lawyer
  but when would documentary
   evidence be protected by the
privilege against self-incrimination
       in the hands of client?
Fisher v. United States
     (U.S. 1976)
• Criminal defendant can be compelled to turn
  over incriminatory evidence
  – Unless act of responding to request is itself
  – “Turn over the weapon you used to kill X.”
required records exception
United States v. Hubbell
      (U.S. 2000)
• The government suspects that your client is a hitman.
  Your client draws up an outline of all his activities as a
  hitman the day that he realizes that he is under
  investigation by the police. He gives you the outline
  to you to help you represent him. The client also
  gives you checks from his clients as payment for hits.
• The government subpoenas you, asking for the
  outline and for “any other documents itemizing
  financial payments to your client for his services as a
• May you refuse to turn over the outline and/or the
• Can the government take away the outline or the
  checks if they are found in your office during a search
  pursuant to a valid warrant?

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