proRo class 4

rule 1.6 (b)(1) and (3) 
the base line rule for 1.6(b)(1) is about future crimes and future harms. you don't reveal a client's crimes unless it's
1.6(b)(3) contemplates the possibility of revealing past crimes

spaulding v. zimmerman
we have an attitude in our adversarial system that lawyers don't have to look out
for the other party, even if the other party has limited resources, and particularly
when the information may be detrimental to the attorney's client.

if you were zimmerman's counsel, would you have asked your client if you could
disclose to the plaintiff the medical information obtained? rule 1.6(a) and comments say that
before going to 1.6(b) you should disclose to your client.

if the attorney seeks informed consent, who must he seek it from? for example, in this
case - must the attorney seek from both the insurance company and the client, or
one party in particular? this is actually a debated issue, but the most common rule
is that it must be the client.

withdraw: 1.16(b)(4) -- the attorney may withdraw if he has a fundamental disagreement
with the client

issue with the opinion: once zimmerman's attorney discloses to the court, isn't the
information available to the other side? in reality, this is the case because communication
to the court is open and non-confidential.

maybe the problem isn't whether to be moral or not about lawyer morality. the problem is
plaintiff's counsel's incompetence: counsel should have asked for the expert report and
but for that carelessness the correct amount would have been paid upfront and the costs of
subsequent proceedings could have been avoided. why isn't the attorney on the hook?

there's a difference between the morality and the cost of a disclosure. if defense counsel
enjoys the moral utility of nondisclosure then he should pay for it.

attorney-client privilege.
protect lawyers from being interrogated about certain communications. however, 1.6,
which protects confidentiality of communications, is an ethical measure imposed
to protect certain information as confidential. the lawyer isn't just forbidden
from testifying about client confidences, but moreover, the lawyer is required to avoid
disclosure to anybody. the function of the rules is different: one has to do with testimony,
and the other is broad and general duty about keeping quiet.

a lawyer must be careful to protect information all the time, not just when someone
is seeking testimony of the information, because voluntary disclosure may result in
waiver of the privilege. the privilege protects info communicated by client to lawyer
in private for the purpose of seeking legal advice.

consequences of breach of att-cli are potential bar discipline and loss of the privilege.
policy goals are to encourage full, frank communication between the attorney and client,
administrative justice,

neither the lawyer or client may be required to disclose communications or advice
during the course of a lawyer's rendering legal services.

three req's for privileged communications:
1. att-cli relationship
2. communications must have been made in confidence
     if a party not necessary to the communication is present
     while the communication is made, may make the communication
     invalid to the privilege.
3. and disclosures made only for the purpose of obtaining legal advice

example: you meet with a lawyer to get info about prosecution for securities
fraud and during that meeting tell the lawyer about an extramarital affair. what's
privileged? the securities fraud info, but not the affair info unless it has to do
with the fraud

the privilege protects communications but not underlying facts. for example,
if the lawyer's office is bugged and underlying facts are discovered, the lawyer
does not have to disclose communications but the facts legally obtained via the
wire are not protected.

only spoken and written communication is protected if for the intention of seeking
legal advice, but visual information is not privileged and documents turned over to
your lawyer isn't necessarily privileged.

example: the attorney has a map of the building that the client created with the
intention of kidnapping. that's not att-cli privileged. why? because it was not
prepared for use by the attorney, but for use by the client.

physical evidence given to the lawyer is not protected.

example: attorney takes possession of weapon for client. that's not privileged.

identity is not protected.

example: local DA announces investigation of political crime. a month later,
the DA subpoenas the most prominent defense attorneys in the state and asks
for the names of all state legis who have been to see them in the past month.
is this privileged information? is this over broad?

the privilege belongs to the client. but under 1.6(b)(6), the attorney may be
ordered to reveal client information. 

waiver: the att-cli privilege may be lost through communication of privileged
information by either client or attorney. if part of the communication is revealed,
the whole privilege is lost. see martin marietta materials case. if the attorney
reveals, the privilege is lost only if the attorney reveals information over which
s/he actually had authority.

direction of the privilege: the privilege protects covered communication from
client to lawyer always. but there is debate about whether it protects information
from lawyer to client.

joint clients, deceased clients: what happens when attorney is representing multiple
clients? communications are not privileged as against the other client. privilege
survives the death of the client.

exceptions to att-cli privilege: crime and fraud. the privilege does not apply to
communications to which the client seeks or receives help from a lawyer to plan
or commit a crime or fraud. must show that this was the basis for the communication
to destroy the privilege. how does this happen?

see purcell v. DA for suffolk county. the lawyer is subpoenaed by the DA to reveal
the communication of the client at trial, and the lawyer objects citing att-cli privilege.
the court finds that the lawyer's testimony can't be compelled because the client
wasn't seeking legal advice in furtherance of the crime.

work-product doctrine.
WPD protects doctrines that are not records of communication between lawyer and
client but instead notes, interviews, impressions, thoughts, memos, legal analysis, etc.
there are two kinds/levels of WPD:
     1. mental impressions, conclusions, opinion, theories of attorney FRCP 26(b)(3)
     2. materials needed for the preparation of the case which cannot be obtained at
         at other means - verbatim notes from witnesses
must show a doc was prepared in anticipation of litigation.

agency.
taylor v. illinois: the takeaway is that the lawyer acts as the client's agent and so the client is
bound by the lawyer's actions, even by the lawyer's tactical mistakes.
SEC v. mcnulty: the loophole here is that, had mcnulty inspired his client to action, the result might have been different. the client was sophisticated in business.

fiduciary duty.
trust. the client is in a position of vulnerablity and therefore, trust. that position of trust is
manifest in a fiduciary duty. the client lawyer relationship can never be purely
commercial or at arm's-length.
star centers inc v. benson