Professional Responsibility Law 115 Wed., Oct. 10

							Professional Responsibility
         Law 115

      Wed., Oct. 10
• DUTY OF CONFIDENTIALITY vs. ATTY CLIENT
  PRIVILEGE
–duty of confidentiality
  • applies everywhere
  • keeps lawyer from divulging a wide
    range of information relating to
    representation
  • 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
  assistance
Corporate Attorney-Client Privilege
Upjohn v. United States
     (U.S. 1981)
• Who are the constituents that count for the
  privilege
• Upjohn
  – Court of Appeals’s Theory
     • Control group
  – Supreme Court’s Theory
     • All employees
§ 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; and
(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 organization.
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
communication.
(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
company.
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);
and
        (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.
Let's say that an interrogatory asks
for the names of the people that
the defendant or his lawyer has
interviewed in anticipation of
litigation and whether any reports
were made. Is this material subject
to the work-product privilege?
A witness you interviewed said that
your client was drunk while driving. You
write it up in a witness statement. The
plaintiff requests the statement in a
document request. May you claim that
it is work product under 26(b)(3)? If an
interrogatory asks your client whether
he was drunk, may he refuse to answer
on the basis of 26(b)(3)?
Let's say that an interrogatory asks a
lawyer to put in his own words what
was said in an interview with a
witness that was prepared in
anticipation of litigation. Is this
material subject to the work-
product privilege in R. 26(b)(3)?
The plaintiff serves you with a
document request asking for
witness statements drafted by a
private investigator retained by
your client prior to hiring you,
when he was worried that he might
be sued. May you refuse to turn it
over under 26(b)(3) and/or
Hickman?
The plaintiff serves you with a
document request asking for an
unsolicited letter you received from
a witness. May you refuse to turn it
over under 26(b)(3) and/or
Hickman?
• 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
- BUT lawyer can assert attorney-
client privilege
problem of documentary evidence
     in the hands of a lawyer
• assume incriminating material is given to the
  lawyer
  – 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 privilege against self-
    incrimination 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
    testamentary
  – Easiest case: “Turn over the weapon you used to
    kill X.”
  – But even if the request is under a more neutral
    description, a response can testify as to the
    existence and authenticity of the documents and
    that can be self-incriminating
     • Exception when existence and authenticity of
       documents is a foregone conclusion
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
  hitman.”
• May you refuse to turn over the outline and/or the
  checks?
• 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?
crime-fraud exception
Restatement section 82
The attorney-client privilege does not apply
to a communication occurring when a client:
(a) consults a lawyer for the purpose, later
accomplished, of obtaining assistance to
engage in a crime or fraud or aiding a third
person to do so, or
(b) regardless of the client's purpose at the
time of consultation, uses the lawyer's
advice or other services to engage in or
assist a crime or fraud
• the attorney-client privilege does not apply to
  communications in which the client seeks the
  services of the lawyer for what the client knew
  or reasonably should have known the purpose
  of engaging in crime or fraud
• Lawyer need not know purpose is fraud
  – Applies to a “good” lawyer as well as a bad one’
• Also applies to communications subsequently
  used for crime/fraud
• But only future (or ongoing) crime or fraud
  trigger the exception.
• Communications concerning past crime or
  fraud (e.g. when engaged in criminal defense)
  do not.
prima facie case
- factual basis adequate to support
good faith belief by a reasonable
person that in camera review may
reveal evidence that crime-fraud
exception applies
exception applies if
reasonable cause to believe that
the attorney’s services were utilized
in furtherance of crime/fraud
• A lawyer is defending his client for arson and
  the client tells him, as an aside and merely to
  show off, that he plans to shoplift something
  after he leaves the lawyer’s office. The lawyer
  strongly warns the client about the legal
  penalties for shoplifting.
• Is the communication privileged?
• Remember case of the murder defendant who
  asks his lawyer what countries have
  extradition treaties with the United States? Is
  that conversation privileged?
• A client comes to you to ask whether he can
  sue someone. You tell him that the facts as he
  has related them to you are missing X, a
  crucial element for the cause of action. He
  thanks you and goes to another lawyer,
  recounting the story with X included. He
  testifies to X at trial. May your testimony
  concerning your conversation with the client
  be used to impeach his testimony?
You and your client are engaging in the
negotiation of an agreement between your client
and a retailer. You discover that while you were
out of the room your client falsely told the
retailer that no significant competitor for your
client's product is likely. In fact, you and the client
know that a competitor is about to introduce a
cheaper and better version of your product in a
few weeks.
You discuss with client how best to defend client
if he is sued for fraud. Does the crime-fraud
exception apply?
• Attorney Self-Defense
handling physical evidence of crime
Commwealth v. Stenhach
  (Pa. Super. Ct. 1986)
In order to show that the criminal statutes
applied to the Stenhach brothers were
unconstitutionally vague, the court
introduces a scenario under which a client
gives his attorney a handwritten account of
his crimes. Turning the document over to
the police would be required by a literal
violation of the statutes but, as the court
notes, “to do so would be an egregious
violation of the attorney’s duties to his
client.” (p. 34)
• Client robbed someone and threw the wallet
  in a trash can (has finger prints on it)
• Tells lawyer about it
• The lawyer removes the wallet from the trash
  can and holds on to it in his office without
  telling the prosecution.
• Has the lawyer obstructed justice?
• MR 3.4
• A lawyer shall not:
• (a) unlawfully obstruct another party' s access
  to evidence or unlawfully alter, destroy or
  conceal a document or other material having
  potential evidentiary value. A lawyer shall not
  counsel or assist another person to do any
  such act;
• (b) falsify evidence, counsel or assist a witness
  to testify falsely, or offer an inducement to a
  witness that is prohibited by law
If the prosecution discovers that the lawyer has
   the wallet, can the lawyer be forced to turn it
   over to them or would that mean violating the
   attorney-client privilege?
• If he can be forced to turn it over, can the
  prosecution introduce as evidence at trial the
  fact that the wallet originally was found in the
  defendant’s trash can?
• How about the fact that the prosecution got
  the wallet from the defendant’s lawyer?
The lawyer removes the wallet
from the trash can and examines it
for evidence favorable to his client.
He finds nothing. He then gives it
to the police anonymously with a
note attached that says that it is
the victim’s wallet.
• The lawyer removes the wallet from the trash
  can and examines it for evidence favorable to
  his client. He finds nothing. He then gives it
  to the police, telling them that he got it from
  the defendant’s trash can
• Has the lawyer obstructed justice?
• May the prosecution introduce as evidence
  the fact that the wallet came from the
  defendant’s trash can?
• May it introduce the fact that the lawyer gave
  the wallet to the police?
• The lawyer looks at the wallet in the trash can
  without touching it, to see if he can find any
  evidence favorable to his client. He doesn’t,
  so he leaves the wallet in the trash can
  without telling the prosecution.