1. Professional Responsibility Law 115 Wed., Oct. 10

2. DUTY OF CONFIDENTIALITY vs. ATTY CLIENT PRIVILEGE

3. – 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)

4. – attorney client privilege evidentiary privilege (reason to refuse to divulge in discovery – including if asked by court) much more limited does not protect information

5. 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

6. Corporate Attorney-Client Privilege

7. Upjohn v. United States (U.S. 1981)

8. Who are the constituents that count for the privilege Upjohn – Court of Appeals’s Theory Control group – Supreme Court’s Theory All employees

9. § 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.

10. problems of joint representation of a corporation and a constituent of the corporation

11. Representing joint clients

12. 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.

13. § 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.

14. In re Grand Jury Subpoena (1 st Cir. 2001)

15. 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.

16. work product privilege

17. 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.

18. (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.

19. 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?

20. 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)?

21. 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)?

22. 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?

23. 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?

24. Intersection of privilege against self- incrimination and attorney-client privilege

25. - 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

26. problem of documentary evidence in the hands of a lawyer

27. 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

28. but when would documentary evidence be protected by the privilege against self-incrimination in the hands of client?

29. Fisher v. United States (U.S. 1976)

30. 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

31. required records exception

32. United States v. Hubbell (U.S. 2000)

33. 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?

34. crime-fraud exception

35. 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

36. 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

37. 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.

38. 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

39. exception applies if reasonable cause to believe that the attorney’s services were utilized in furtherance of crime/fraud

40. 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?

41. Remember case of the murder defendant who asks his lawyer what countries have extradition treaties with the United States? Is that conversation privileged?

42. 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?

43. 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?

44. Attorney Self-Defense

45. handling physical evidence of crime

46. Commwealth v. Stenhach (Pa. Super. Ct. 1986)

47. 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)

48. 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?

49. 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

50. 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?

51. 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?

52. How about the fact that the prosecution got the wallet from the defendant’s lawyer?

53. 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.

54. 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?

55. 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.