class 3 overview:
who is the client?
how is the attorney-client privilege formed?
attorney-client privilege.
see post "proRo problem"- not rule bound but est by common law
- can be vague whether the relationship is est
- general standards (see p. 25 of textbook)
"person manifests to att intent for rep"
"att knows/ reasonably should know person is relying on their rep"
The "C"s of confidentiality in attorney-client privilege: Client Communicates Confidentially with Counsel to obtain Counsel.
don't have to see the person face to face even, but can be probative.
however, there's no singular dispositive thing except, perhaps,
the REASONABLE EXPECTATION OF THE CLIENT
- esp if the person has given the att privileged confidential info
before giving opinions, the att must consider "would this person
reasonably consider this legal advice?" if so: court may say
"att-client relationship!"
while no single factor is dispositive,
the reasonable expectations of the client determine whether
the att-cli relationship has been formed."
confidentiality
model rules rule 1.6
see comment 4
discussion of the 2004 updates to rule 1.6
you can see within the text of the rule 2 exceptions to the
baseline obligations:
1. client's informed consent to representation
2. implicit consent to representation
informed consent is defined for us at MPRC 1.0(e) but is a recurring concept.
implicit consent is where consent to reveal/disclose is implied.
- specific information that att has been given but hasn't turned over
- work done in the service of the client
what can you say/not say to others in respect to the work done for a client?
under just MPRC 1.06, you can say nothing.
with respect to comment 4, you can say things so long as the information
will not be related back to/identify the client. comment 4 makes it OK to
reveal information in hypothetical form for professional purposes. but
doesn't allow you to spill the beans about your client with your buddies...
bottom line: most lawyers interpret duty of confidentiality to not prohibit
the discussion of work entirely but to inhibit disclosures that may be linked
to any particular individual which could be traced back to a client.
explicit exceptions under 1.6 (b):
1. prevent reasonably certain death or substantial bodily harm
2. prevent the client from commiting a crime or fraud that is reasonably certain
to result and substantial injury to someone's financial interest or property
and in furtherance of which the client has used the lawyer's services
3. to prevent/mitigate substantial injury to property or financial injury to person
that has resulted or will result from client's past commission of a crime or
fraud and in furtherance of which the client has used the lawyer's services
4. to secure compliance with rules
5. to est. defense for lawyer in dispute between lawyer and client
6. to comply with another law or court order
* past criminal conduct: general consensus is lawyers can't reveal
* past criminal activity of their clients. compare 1.6(b)(1) through (3).
1.6(b)(1) and (2) prevent future crimes
1.6(b)(3) deals with completed crimes
1.6(b)(3) allows the lawyer to reveal if the crime will result in substantial
physical or financial injury or death
if the criminal act is past and the client hires the lawyer to hire him/her
with respect to the past fraudulent act, 1.6(b)(3) is inapplicable.
instead see comment 8.
hypo.
attorney learns that client intends to commit arson to former boss.
can att disclose?
yes. why and under what rule?can invoke 1.6(b)(1) if you show someone was likely to be hurt
can invoke 1.6(b)(2) if the cli was using the att to commit this crime...
let's say the att was engaged for an age discrim suit. that connection
would NOT allow the att to invoke because the cli didn't use the service
to commit the crime.
what if the att gave the cli advice based on a hypo "i'm going to burn down
my boss' building. what would happen if i do?" can he disclose? hypo.
att unwittingly helps cli create and file falsified docs. can he disclose?yes.
now, rule 1.6(b)(2) does apply because the att's role
directly impacts the crime or fraud committed.
hypo.
att is approached to represent cli about fraudulent claims to SEC.
over time att discovers that cli did make the fraudulent claims.
can he reveal?
no. under comment 8 of 1.6(b)(3), the att was approached by the clientfor that charge and for (b)(3) to apply, cli must have approached the att
to advance the crime, not just to represent after the fact.
the harm resulting from a fraud is ongoing and difficult to pin down
when it occurs. the critical legal inquiry to decide if (b)(3) applies is
"is the commission of the fraud itself past?"
but when fraud can be ongoing, the att must be able to identify
components of the fraud which were ongoing and reliant on
representation and services of the att. it's very difficult to pin
down when a financial harm will occur, if it all.
all exceptions to duty of confidentiality are permissive, including (b)(1),
except in states which make (b)(1) mandatory. there is no requirement
to reveal under MPRC.
see "proRo class 3: alton logan"
hypo.
11 yr old goes missing on way to bible study. the father and friends
distribute pictures of the child to the community but no one has seen
the child. the cops arrest a man for a botched kidnapping of a 12 yo
and suspect the man also killed the 11 yo. the defendant confesses
that he abducted the 11yo and buried her in a shallow grave, draws
a crude map. public defender is aware the confession can be attacked
collaterally and defendant is convicted.
apply rule 1.6 - could the att have advised the client to disclose,
or if he knew the location could he have disclosed?
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