chapter 5 conflicts of interest -part 1 spring 2015

C. 4 Lawyer's Duty of Confidentiality 1

Professional Responsibility Ch. 4 The Lawyer’s Duty of

Confidentiality George W. Conk Adjunct Professor of Law & Senior

Fellow Stein Center for Law & Ethics Room 409 212-636-7446 [email protected] April 7, 2015

mailto:[email protected]

FR Evid 501 Privilege The common law — as interpreted by

United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:- the United States Constitution;- a federal statute; or- rules prescribed by the Supreme Court.But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.


https://www.law.cornell.edu/rules/fre/rule_501



Two evidentiary and testimonial privileges against disclosure FRE 502

Attorney client privilege - protection of confidential

communications between attorney and client

Work-product privilege Tangible material or intangible

equivalent prepared in anticipation of litigation or trial

The privilege belongs to the client

Attorney must assert it unless waived


Attorney Client Privilege

1) protects communications

2) between privileged persons

3) in confidence

4) for the purpose of providing legal

assistance


A barrier to discoveryNot a rule of evidence

Work-Product Privilege


Work Product Privilege FRCvP Rule 26 A limitation on discoverable material Documents and tangible things

prepared in anticipation of litigation or for trial

May be overcome on showing of “substantial hardship”

Court must “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation”


Privileges are in derogation of search for truth 1) Party asserting privilege has the

burden of proof that either - the communication is between

attorney and advice-seeking client or agent OR

- it is attorney work product (notes, impressions, legal theories – not facts)

AND it has not been disclosed to a stranger to the representationC. 4 Lawyer's Duty of

Confidentiality 7

Q. 4-1 Client leaving dirty picture showWhat is the proper finding for the disciplinary committee? P.316 (A) The lawyer violated no duties

because the information about the client’s whereabouts was not protected by the attorney-client privilege.

(B) The lawyer violated the duty of confidentiality because the information was privileged.


Q. 4-1 Client leaving dirty picture showWhat is the proper finding for the disciplinary committee? (C) The lawyer violated the duty of

confidentiality because the information was related to the representation and was not covered by any of the exceptions.

(D) The lawyer violated no duties because the information was not secret—it was

known by the woman who was with his client at the time. C. 4 Lawyer's Duty of

Confidentiality 9

Model Rule 1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless

the client gives informed consent,

the disclosure is impliedly authorized in order to carry out the representation or

the disclosure is permitted by paragraph (b).C. 4 Lawyer's Duty of

Confidentiality 10


Restatement § 60 A Lawyer's Duty to Safeguard Confidential Client Information

(1) …During and after representation of a client:

(a) the lawyer may not use or disclose confidential client information… if there is a reasonable prospect that doing so will adversely affect a material interest of the client or

the client has instructed the lawyer not to use or disclose such information



§ 61 Using or Disclosing Information to Advance Client Interests

A lawyer may use or disclose

confidential client information when

the lawyer reasonably believes that

doing so will advance the interests

of the client in the representation.

Q. 4-2, p. 317 Must the lawyer produce the surveillance tape? (A) No, because it is privileged. (B) No, because to do so would

violate Lawyer’s duty of confidentiality.

(C) Yes, because the information is not privileged and the lawyer must turn over non-privileged information if a lawful demand is made.

(D) Yes, because even though the information is privileged, the Lawyer must comply with a discovery request.


M.R.P.C. 1.6 (b) (6)

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(6) to comply with other law or a court order.



Exceptions to Confidentiality – Lawyer's Duties to a Client – Restatement § § 61-67

- to advance client interests (61) - with consent (62) - when required by law (63) - in self-defense by attorney (64) - in a fee dispute (65) - to prevent death or serious bodily

harm (66)

Q. 4-3, p. 324 Is this a good deal? How is this communication to be

treated?

(A) As privileged, because the client

was speaking in confidence to the

lawyer.

(B) Not privileged, because the client

was not seeking legal advice, and

therefore not within the duty of

confidentiality under Model Rule 1.6.


Q. 4-3, p. 324 Is this a good deal? (C) Privileged, if the dominant intent

is to seek legal advice, and within the duty of confidentiality.

(D) Privileged, if there was any intent to seek legal advice, but not protected by the duty of confidentiality as its disclosure would not injure the client


Between attorney (or agent) and client

Protected Communications


Communications (Not facts) are privileged

The communications requirement


Communications between whom? Attorney and client – or client’s

agents within the scope of the representation of the client

- shareholders? - directors? - officers - control group? - employees - experts/consultants


Q. 4-4 P. 330 Can the lawyer refuse to testify that he saw the former client skiing?

(A) No, because the information is not a communication and therefore is not protected by the privilege.

(B) No, because the attorney no longer represents the client.

(C) Yes, because turning over the information could subject the lawyer to discipline for violating Model Rule 1.6.

(D) Yes, because the privilege means that the lawyer cannot be forced to testify against his client. C. 4 Lawyer's Duty of

Confidentiality 21

In re County of Erie (2007), p. 307 Should the privilege of attorney

client confidentiality be broader or narrower for public entities?

To prevail plaintiffs needed to show an intentional tort – i.e. that the County had a policy of invasive strip searches.

Shouldn’t the centrality of that issue lead to disclosure of all relevant communications between County lawyers and officials?C. 4 Lawyer's Duty of

Confidentiality 22

NJRE 504 Atty – Client Privilege

The privilege shall be claimed by

the lawyer unless otherwise

instructed by the client or his

representative

The privilege may be claimed by

the client in person, or if

incompetent or deceased, by his

guardian or personal

representative.


Disclosure to someone other than the privileged person’s lawyer* is a waiver

Unless - Disclosure was inadvertent - privilege holder took reasonable

measure to prevent disclosure - privilege holder took reasonable

steps to rectify disclosure * or agents of lawyer


Common interest agreement

Parties who agree share

confidential information

pursuant to a common defense

or litigation strategy or in a

common matter have not waived

confidentiality thereby.C. 4 Lawyer's Duty of

Confidentiality 25

Upjohn v. United States (1981)

The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.

Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justiceC. 4 Lawyer's Duty of

Confidentiality 26

Upjohn warning – ABA White Collar Crime Section

I am a lawyer for Corporation A. I represent only Corporation A, and I do not represent you personally.

I am conducting this interview to gather facts in order to provide legal advice for Corporation A. This interview is part of an investigation to determine the facts and circumstances of X in order to advise Corporation A how best to proceed.

Your communications with me are protected by the attorney-client privilege. But the attorney-client privilege belongs solely to Corporation A, not you. That means Corporation A alone may elect to waive the attorney-client privilege and reveal our discussion to third parties. Corporation A alone may decide to waive the privilege and disclose this discussion to such third parties as federal or state agencies, at its sole discretion, and without notifying you.


Upjohn warnings - ABA Your communications with me are

protected by the attorney client privilege. But the attorney client privilege belongs solely to Corporation A, not you. That means Corporation A alone may elect to waive the attorney client privilege and reveal our discussion to third parties. Corporation A alone may decide to waive the privilege and disclose this discussion to such third parties as federal or state agencies, at its sole discretion, and without notifying you


Upjohn warning, cont’d In order for this discussion to be

subject to the privilege, it must be kept in confidence. In other words, with the exception of your own attorney, you may not disclose the substance of this interview to any third party, including other employees or anyone outside of the company. You may discuss the facts of what happened but you may not discuss this discussion.

Do you have any questions? Are you willing to proceed?


Upjohn v. United States (1981), p. 332

Who holds the privilege?

Why does the court reject the control

group test as too “narrow”?

What options do the prosecutors

have after Upjohn?


Upjohn v. United States (1981), p. 332

Aren’t the questionnaires the most efficient way for the prosecutor’s office to get what it needs?

What was the Magistrate’s error regarding the work product privilege?


Sharing within an organization Disclosures regarding a legal matter

of the entity Among its agents or privileged

persons Who reasonably needs to know in

order to act for the corporation Do not waive the attorney client

privilege of confidentiality


Restatement 3rd LGL: § 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.

C. 4 Lawyer's Duty of

Confidentiality 35

When they seek legal advice for themselves

Only clients are protected


In re G.J.Subpoena(4th Cir. 2005) p. 340

We represent the company. These conversations are privileged, but the privilege belongs to the company and the company decides whether to waive it. You are free to consult with your own lawyer at any time.”

"We can represent [you] until such time as there appears to be a conflict of interest, [but] . . . the attorney-client privilege belongs to AOL and AOL can decide whether to keep it or waive it.“



(1) the asserted holder of the privilege is or sought to become a client

(2) the person to whom the communication was made

(a) is a member of the bar of a court, or his subordinate and

(b) in connection with this communication is acting as a lawyer



(3) the communication relates to a fact of which the attorney was informed

(a) by his client (b) without the presence of

strangers

c) for the purpose of securing

primarily either (i) an opinion on

law or (ii) legal services or (iii)

assistance in some legal

proceeding



and not

(d) for the purpose of

committing a crime or tort; and

(4) the privilege has been

(a) claimed and

(b) not waived by the client.



The joint defense privilege protects communications between parties who share a common interest in litigation.

To allow persons with a common interest to "communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims."

Some joint strategy req’dC. 4 Lawyer's Duty of

Confidentiality 41

In re New York Renu p. 347Report of special master

Is the communication privileged?Disclosures to non-lawyer agents of the representation


Renu Moisture-Loc privilege claims Two email chains 1) Corp and Exec to CEO, General

Counsel and Hill & Knowlton PR firm Denied

2) Corp exec to CEO re need to seek legal advice from GC Sustained

3) Hill and Knowlton suggest mechanism for redemption of defective items Denied


`Kovel doctrine’ Disclosure to non-lawyers is protected IF 1) Communication’s predominant

purpose is to seek legal advice 2) Disclosure limited to those with

“need to know” advice of counsel 3) State privilege law applies in

diversity or FTCA case 4) Communication to non lawyer

must be necessary to promote the lawyer’s effectiveness


Is communication with a PR firm `necessary to the representation?

1) NO “a media campaign is not a litigation strategy” Haugh v. Schroder (2003)

2) Foreign language – company needed help from PR firm Copper Market Anti-trust Lit (2001)

3) PR firm helped counsel “create an atmosphere” to influence prosecutor In Re. G.J. (2003)

4) NY – waiver unless disclosure “absolutely necessary” to lawyer’s services


Q. 4-5 p. 352 – Expectation of confidentiality Is the negative information obtained by the

law firm protected by the attorney-client privilege?

(A) Yes (B) No


U.S. v. Hatcher (2003) p. 330

Because the inmates and their

lawyers were aware that the

conversations were being

recorded they had no reasonable

expectation of privacy


Intentional relinquishment of a known right

Forfeiture

Waiver of the privilege


Which of the following is correct?Q. 4-6, p. 357

(A) The report is not privileged, because the law firm was acting as a factual investigator, and so the “legal advice” requirement of the privilege is not met.

(B) The corporation waived any privilege by disclosing the report to the Department of Justice.


Which of the following is correct?Q. 4-6, p. 357

(C) There was no waiver, because the corporation was forced to turn over the report to the Department of Justice, in order to avoid a criminal prosecution.

(D) The private parties cannot take advantage of the waiver, because it was not a general waiver, and the Department agreed to keep the disclosure confidential. C. 4 Lawyer's Duty of

Confidentiality 50

Development of F.R. Evid,. 502 – limitations on waiver of privilege Pre-rule case law:

1) only intentional disclosure is a

waiver

2) careless disclosure and no

retrieval = waiver

3) any inadvertent disclosure is a

waiver


Fed. R. Evidence 502Limitations on Waiver of Attorney Client and Work Product Privileges a) In a federal proceeding or to a

federal office or agency b) inadvertent disclosure c) in a state proceeding d) federal court order may limit

waiver by disclosure e) party agreement binds only

parties unless incorporated in a court order C. 4 Lawyer's Duty of

Confidentiality 52

FRE 502 Inadvertent Disclosure not a waiver if the disclosure is inadvertent; the holder of the privilege or

protection took reasonable steps to prevent disclosure; and

the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).


FRCP 25(b)(5)(B)

(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it.


FRCP 25(b)(5)(B)

After being notified, a party must

promptly return, sequester, or

destroy the specified information and

any copies it has; must not use or

disclose the information until the

claim is resolved;C. 4 Lawyer's Duty of

Confidentiality 55

FRCP 25(b)(5)(B) must take reasonable steps to

retrieve the information if the party

disclosed it before being notified; and

may promptly present the

information to the court under seal

for a determination of the claim. The

producing party must preserve the

information until the claim is

resolved.


Q.4-7 p. 366 Has the defendant waived the privilege by producing the emails in the prior litigation?

(A) No, because there has been no showing that any waiver was intentional.

(B) No, because the court order protects against a waiver in any subsequent litigation.

(C) Yes, because the order in the previous case cannot bind a person who was not a party in that case.

(D) Yes, because the order was entered in the absence of agreement between the parties in the case


to the Attorney Client Privilege

The Crime Fraud Exception


In re Grand Jury Investigation (Schroeder) (11th Cir.1987)

1) a prima facie showing that - the client was engaged in criminal

or fraudulent conduct when he sought the advice of counsel

- that he was planning such conduct when he sought the advice of counsel, or

- he committed a crime or fraud subsequent to receiving the benefit of counsel's adviceC. 4 Lawyer's Duty of

Confidentiality 59

https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1987064893&pubNum=350&originationContext=document&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)


In re Grand Jury Investigation (Schroeder) (11th Cir.1987)

Second, there must be a showing

that the attorney's assistance was

obtained in furtherance of the

criminal or fraudulent activity or was

closely related to it. .




Ch. 4 Lawyer's Duty of Confidentiality Part 2 61

Professional Responsibility Ch. 4 The Lawyer’s Duty of

Confidentiality - part 2 George W. Conk Adjunct Professor of Law & Senior

Fellow Stein Center for Law & Ethics Room 409 212-636-7446 [email protected]

mailto:[email protected]

The Crime Fraud Exception

Attorney’s knowledge irrelevant

Applies only when attorney is being

used in future or ongoing scheme

Triggered by client’s communication

of intent to defraud or commit crime


§ 82 Client Crime or Fraud No privilege if 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.


Q. 4-8, p. 373 – Crime-fraud exception to the duty to maintain confidences

A) Neither is privileged because both statements are evidence of crie of fraud.

B) Both are privileged because they are part of request for legal advice

C) first is privileged, second is not because it was made to further a crime or fraud

D) Second statement is privileged if Joe abandons his plan to destroy records


MRPC 1.6

Basics of the Duty of Confidentiality


Q. 4-9, p. 376 – triggering the duty under RPC 1.9 – former and prospetive clients Subject to discipline?

A) Yes – Smith was a client

B) Yes – Smith was a prospective

client c) No - Smith was not a

client

D) No - information was not

dispositive Ch. 4 Lawyer's Duty of Confidentiality Part 2 66

Q. 4-10, p. 381 – Scope of info w/i the duty of confidentiality

A) No – it is not privileged info B) No - because the former partner

committed fraud on the tribunal C) Yes – because neither client nor

attorney was involved D) Yes – because disclosure would be

detrimental to the client


Q. 4-11, p. 386 info unrelated to the representation

A) Yes – he is an officer of the court B) Yes – he is impeding state access

to evidence C) No – because he did not represent

or advise the client re the prior crimes

D) No – the info was obtained in the course of the representation


Q. 4-12, p. 387 – to prevent death or serious injury

A) No – he had a duty to disclose B) No – he was permitted to disclose

to prevent a death C) – Yes because he cause death of

his cliet D) Yes – because death was not

reasonably certain


Q. 13, p. 362 – destroying evidence A) No – lawyer has no duty to sit

silently while client commits a crime B) No – the information was not

privileged as advice was not sought on that issue

C) No – because disposing of a weapon could lead to death or serious bodily harm

D) Yes - because there is no exception to the duty of confidentiality under these circumstances


Q. 14, p. 362 client threatens suicideMay attorney disclose the fact to authorities? A) Yes – because a future crime is not

protected by Attorney-client privilege B) Yes – because disclosure might

prevent client’s death C) No – unless atty knows there have

been prior attempts D) No – because disclosure would aid

state in civil commitment proceedings


Q. 4-13, p. 372 Self protection – is attorney disclosure permitted?

A) Yes – unless client objects B) Yes – because an attorney has a

right of self-defense C) No – unless criminal charges have

been brought against the attorney D) No – because disclosure will harm

the client


Definitions and black-letter rules

Confidentiality


Confidential information – NY definition

“Confidential information” consists of

information gained during or relating

to the representation of a client,

whatever its source, that is (a)

protected by the attorney-client

privilege, (b) likely to be

embarrassing or detrimental to the

client if disclosed, or (c) information

that the client has requested be kept

confidential.


Confidential information – NY definition “Confidential information” does not ordinarily include (i) a

lawyer’s legal knowledge or legal research or

(ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.


Model Rule 1.6: Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless

the client gives informed consent,

the disclosure is impliedly authorized in order to carry out the representation or

the disclosure is permitted by paragraph (b).Ch. 4 Lawyer's Duty of

Confidentiality Part 2 76

Rule 1.6 (b) exceptions to Confidentiality of Information

(b) A lawyer may reveal

information relating to the

representation of a client to the

extent the lawyer reasonably

believes necessary:



(1) to prevent reasonably certain

death or substantial bodily harm


Rule 1.6 (b) exceptions

(2) to prevent the client from

committing a crime or fraud that

is reasonably certain to result in

substantial injury to the financial

interests or property of another

and in furtherance of which the

client has used or is using the

lawyer's services;Ch. 4 Lawyer's Duty of Confidentiality Part 2 79


(3) 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

of a crime or fraud in furtherance of

which the client has used the

lawyer's services;



(4) to secure legal advice

about the lawyer's

compliance with these Rules


Rule 1.6 (b) exceptions to Confidentiality of Information (5) to establish a claim or defense on

behalf of the lawyer in a controversy between the lawyer and the client

to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or



(6) to comply with other law

or a court order.




(1) …During and after representation of a client:

(a) the lawyer may not use or disclose confidential client information… if there is a reasonable prospect that doing so will adversely affect a material interest of the client or

the client has instructed the lawyer not to use or disclose such information



§ 61 Using or Disclosing Information to Advance Client Interests

A lawyer may use or disclose confidential client information when the lawyer reasonably believes that doing so will advance the interests of the client in the representation.

M.R.P.C. 1.6 (b) (6)

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(6) to comply with other law or a court order.



Exceptions to Confidentiality – Lawyer's Duties to a Client – Restatement § § 61-67

- to advance client interests (61) - with consent (62) - when required by law (63) - in self-defense by attorney (64) - in a fee dispute (65) - to prevent death or serious bodily

harm (66)

Rule 1.18 Duties to Prospective Client

(a) A person who discusses with

a lawyer the possibility of

forming a client-lawyer

relationship with respect to a

matter is a prospective client.



(b) Even when no client-lawyer

relationship ensues, a lawyer who

has had discussions with a

prospective client shall not use or

reveal information learned in the

consultation, except as Rule 1.9

would permit with respect to

information of a former client.Ch. 4 Lawyer's Duty of Confidentiality Part 2 89

Rule 1.18 Duties to Prospective Client (c) A lawyer subject to

paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d) [screening].



If a lawyer is disqualified from

representation under this

paragraph, no lawyer in a firm

with which that lawyer is

associated may knowingly

undertake or continue

representation in such a matter,

except as provided in paragraph

(d) [screening].


R. 1.9 Duties to former clients (c) A lawyer who has formerly

represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:


R. 1.9 Duties to former clients (1) use information relating to

the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.


R. 3.3 Candor Toward the Tribunal

(b) A lawyer who represents a client

in an adjudicative proceeding and

who knows that a person intends to

engage, is engaging or has engaged

in criminal or fraudulent conduct

related to the proceeding shall take

reasonable remedial measures,

including, if necessary, disclosure to

the tribunal.


Q. 4-14 p. 403 Lawyer self-protection

Is it proper for Attorney to reveal such information?

(A) Yes, unless Client objects to the disclosure.

(B) Yes, because Attorney may reveal such information to defend herself against a civil claim.

(C) No, unless criminal charges have also been brought against Attorney.

(D)No, because the disclosure will be detrimental to Client. C. 4 Lawyer's Duty of

Confidentiality 95