Secrecy Flashcards
(14 cards)
Duty of Confidentiality
Can’t reveal information relating to the representation
Exceptions to Duty of Confidentiality - 1.6
(1) Client gives informed consent - 1.6(a)
(2) Implied Authority - the disclosures are required by the rules of procedure and will help the client
(3) To prevent reasonably certain death or substantial bodily harm
(4) To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financing interests or property of another
(5) To prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission or fraud in furtherance of which the client has used the lawyer’s services
(6) to secure legal advice about the lawyer’s compliance with these rules
(7) Lawyer’s claim for self defense
(8) to comply with law or court order
Attorney-Client Privilege
(1) Client (or potential client)
(2) Communicates
(3) Confidentially with
(4) Counsel
(5) In order to obtain Counsel
Attorney-Client Privilege Exceptions
(1) Crime-Fraud Exception
- when the client’s intent is to perpetrate crime/fraud through the lawyer
(2) Advice of Counsel Defense
- client seeks lawyer’s advice to see if something was legal - and client says that the lawyer told him that he could do something as a defense
(3) Self-Defense Exception
- a lawyer is permitted to defend himself against the accusations of a third party by revealing confidential client communications
Waiver of Attorney-Client Privilege
Privilege is waived by disclosing the substance of the communication to a third party
- can be accidental or deliberate
Work-Product Doctrine
Prevents discovery of materials prepared “in anticipation of litigation”
Hickman v. Taylor - Breaks down WP into 2 types
(1) Ordinary WP - generally protected
- info recorded by the attorney (or agents) in anticipation of litigation
Only discoverable if:
1. the party seeking discovery has a substantial need for the materials, and
2. the party is unable to obtain the substantial equivalent of the materials by other means
(2) Opinion WP - receives more protection than ordinary WP
- the written impressions, conclusions, opinions or legal theories of an attorney (or agent) concerning litigation
*WP doctrine generally protects only tangible things, not oral communications
Tangible/Physical Evidence - Rule 3.4 Goalposts
(1) In re Ryder
- if a lawyer comes into possession of contraband, instrumentalities, or fruits of a crime, they MUST turn it over to the authorities
(2) People v. Meredith
- where defense counsel alters or removes evidence that he observed or discovered solely because of a privileged communication with his client, the original location and condition of that evidence will not be protected by A/C privilege
Perjury - Nix v. Whiteside
Answers the 6th Amendment question:
- a client’s 6th amendment right does not override a lawyer’s 3.3 and 1.6 obligations
- it was permissible for the attorney to threaten to violate AC privilege when he knew that his client was going to lie on the stand
Prospective Perjury
- if a lawyer KNOWS that a a criminal defendant will testify falsely, the lawyers MUST NOT allow the client to testify
- if a lawyer REASONABLY BELIEVES that a criminal defendant will testify falsely, the lawyer must put the client on the stand if they want to testify
- in a civil matter, if a lawyer reasonably believes that a a client or any other witness will testify falsely, then the lawyer has discretion whether or not to call that person to the stand
*In a situation with a criminal defendant, a lawyer must make a GF effort to dissuade the client from presenting false evidence
Retrospective Perjury - 3.3(c)
(1) Recess the proceeding immediately - talk to client
(2) Remonstrate with client - try to persuade them that it’s the wrong course of action
(3) Threaten to Resign - but only if it will remedy the perjury
(4) Reveal the perjury
- Only disclose to the court when there is no other alternative
- Whenever permitted to disclose, do so in a way that is least harmful to the client
*Rule 3.3(c) is the only rule that expressly overrides the duty of confidentiality
Entity Clients Duty of Confidentiality - Rule 1.13
- Lawyer only represents the entity itself, not any individual members
- 13(b) - Reporting Up
- have to report to highest authority within the organization if lawyer knows that employee is engaged in action, intends to act or refuses to act in matter related to the representation that is a violation of a legal obligation to the organization (or might be imputed to the org), and that is likely to result in substantial injury to the org - 13(c) - Reporting Out
- if the highest authority fails to act and the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the org, then the lawyer may report out. But such disclosure must only be done to the extent necessary to avoid the substantial harm
Entity Clients AC Privilege - Upjohn subject matter test (Federal Court Standard)
(1) employee communicates with lawyer at the direction of the employee’s superior or initiated by the lawyer
(2) the employee knows that the the purpose of the communication is to obtain legal advice for the corporation
(3) the communication concerns a subject within the scope of the employee’s duties to act for the corporation
(4) and it is not disseminated beyond those in the corporation who “need to know” its content
Entity Clients AC Privilege - Functional Test: Samaritan Foundation v. Goodfarb (majority standard in state courts)
2 categories:
(1) Employee’s initiative
- privilege always applies
(2) Someone else’s (lawyer’s or some higher up at corp)
- privilege sometimes applies
Test: If the entity can be held vicariously liable for the actions of the employee, then the privilege applies
