Chapter 4

Attorney-Client Privilege and the Lawyer’s Duty of Confidentiality

Model Rule 1.6

Confidentiality of Information

URL: http://www.americanbar.org/content/aba/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html

Question 4-1

Lawyer represents a client who suffered injuries when he was run down by a car in a crosswalk. The lawyer investigates the matter and comes upon a surveillance tape indicating that his client, one minute before the accident, had exited from an XXX rated adult theater with a woman who was not his wife. At a dinner party, the lawyer tells everyone the "ironic" story of his client, who got run down after being so "naughty."

What is the proper finding for the disciplinary committee?

Question 4-2

Lawyer represents a client who suffered injuries when he was run down by a car in a crosswalk. The lawyer investigates the matter and comes upon a surveillance tape indicating that his client, one minute before the accident, had exited from an XXX rated adult theater with a woman who was not his wife. Before trial, the lawyer receives a discovery request from defense counsel, demanding production of any surveillance tapes that are or may be relevant to the action. The lawyer refuses to produce the surveillance tape he found.

Must the lawyer produce the surveillance tape?

Restatement §68

Except as otherwise provided in this Restatement, the attorney-client privilege may be invoked as provided in §86 with respect to:(1) a communication(2) made between privileged persons(3) in confidence(4) for the purpose of obtaining or providing

legal assistance for the client.

FRE 501

Federal common law – as interpreted by United States courts in light of reason and experience – governs a claim of privilege unless any of the following provides otherwise:

• the United States Constitution• a federal statute• 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.

Restatement §72

A communication is made for the purpose of obtaining or providing legal assistance with the meaning of §68 if it is made to or to assist a person:

(1) Who is a lawyer or who the client or prospective client reasonable believes to be a lawyer; and

(2) Whom the client or prospective client consults for the purpose of obtaining legal assistance.

Question 4-3

Client retains lawyer for his assistance in a real estate transaction. Client asks the lawyer in confidence whether the lawyer thinks it is "a good and workable deal." How is this communication to be treated?

In re County of Erie473 F.3d 413 (2d Cir. 2007)

Restatement §69

A communication within the meaning of §68 is any expression through which a privileged person, as defined in §70, undertakes to convey information to another privileged person and any document or other record revealing such an expression.

Question 4-4

An attorney represents a plaintiff in a personal injury action. The plaintiff is in a bodycast and claims extensive injuries after a car accident. About a month before the trial date, the attorney goes on a skiing vacation. As he is swooshing down the slopes he sees his client --- bodycast-free --- swooshing down ahead of him. The defendant now subpoenas the lawyer to provide any information he has about the plaintiff's medical condition. The attorney --- who has since withdrawn from the representation --- refuses to supply any information and invokes both the attorney-client privilege and his duty of confidentiality.

Does the attorney have a valid claim for refusing to testify on what he knows about the former client's condition?

Restatement §70

Privileged persons within the meaning of §68 are the client (including a prospective client), the client’s lawyer, agents of either who facilitate communications between them, and agents of the lawyer who facilitate the representation.

Upjohn Co. v. United States449 U.S. 383 (1981)

Restatement §73

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 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; andb) other agents of the organization who reasonably need to know

of the communication in order to act for the organization.

In re Grand Jury Subpoena: Under Seal415 F.3d 333 (4th Cir. 2005)

Model Rule 1.13

Organization as Client

URL: http://www.americanbar.org/content/aba/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_13_organization_as_client.html

In re New York Renu with Mostureloc Product Liability Regulation2008 WL 2338552 (D.S.C.)

Question 4-5

The board of directors of a corporation votes to do a public offering of stock. The corporation hires an outside law firm to prepare the necessary documentation. The law firm communicates with corporate personnel and obtains factual information that would put the corporation in a negative light. Upon review of this information, the lawyer recommends that the corporation terminate its plan to do a public offering. The board agrees.

Is the negative information obtained by the law firm protected by the attorney-client privilege?

United States v. Hatcher323 F.3d 666 (8th Cir. 2003)

Question 4-6A corporation is being investigated by the Environmental Division of the Department of Justice on suspicion that it had illegally dumped toxic chemicals for a number of years. Before the DOJ investigation began, the corporation had hired a law firm to investigate how the company was disposing of the chemicals. Lawyers interviewed corporate agents and filed a report with the corporation. The Department of Justice requests this report from the corporation. The corporation agrees to turn over the report "in the spirit of cooperation" but only if the Department of Justice signs a confidentiality agreement under which the Department will not turn over the report to any private parties.

After receiving the report, the Department of Justice concludes its investigation of the corporation. But private parties allegedly injured by the corporation's activities bring a lawsuit against the corporation. They serve a discovery demand for the report. The corporation refuses to turn over the report, citing the attorney- client privilege. Which of the following is correct?

FRE 502

Attorney-Client Privilege and Work Product; Limitations on Waiver(a) Disclosure made in a federal proceeding or to a federal

office or agency; scope of waiver(b) Inadvertent disclosure(c) Disclosure made in a state proceeding(d) Controlling effect of a court order(e) Controlling effect of a party agreement(f) Controlling effect of this rule(g) Definitions

Question 4-7One big corporations sued another for fraud after a deal went sour. Each sought discovery of thousands of emails that were relevant to the case. At the defendant's request, and over the plaintiff's objection, the court entered an order providing that any disclosure of information protected by the attorney-client privilege during discovery would not constitute a waiver of the privilege. After the order was entered, the defendant produced 650,000 emails; 1000 emails involved confidential attorney- client communications. Subsequently the defendant was sued for fraud by another corporation that was involved in the deal that went bad. The plaintiff in this second case sought to use as evidence the 1000 privileged emails that the defendant produced in the previous litigation - arguing that the defendant waived the privilege by producing them in that litigation.

Has the defendant waived the privilege by producing the emails in the prior litigation?

Am. Bar Ass’n, Standing Comm. On Ethics & Prof’l ResponsibilityFormal Op. 06-442 (2006)

Model Rule 4.4

Respect for Rights of Third Persons

URL: http://www.americanbar.org/content/aba/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons.html

In re Nitla S.A. de C.V.92 S.W.3d 419 (Tex. 2002)

Restatement §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.

Question 4-8

Joe is a used car salesman. He has been sued by a buyer who claims she bought a car with a turned-back odometer. Joe retains Lawyer to defend the case. When Lawyer asks Joe to describe the background of the dispute, Joe makes two statements to the Lawyer in confidence:

1) "I've destroyed a number of documents that could be used to prove the buyer's case."

2) "I still think there might be some documents in the files that could be relevant to her case. Could you look through the files and let me know what you think she might ask for in discovery?"

Are these statements privileged?

Question 4-9

Smith meets with Lawyer to discuss a possible property claim against Rich. After Smith explains his claim, Lawyer determines that Smith cannot afford her services and refuses the case. Rich then meets with Lawyer and offers to meet all of Lawyer's financial terms. In representing Rich, Lawyer uses the information Smith provided, reasoning that because they never had an attorney-client relationship, Lawyer owed Smith no duty of confidentiality. Is she subject to discipline?

Model Rule 1.18

Duties to Prospective Client

URL: http://www.americanbar.org/content/aba/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_18_duties_of_prospective_client.html

Model Rule 1.9

Duties to Former Clients

URL: http://www.americanbar.org/content/aba/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients.html

Question 4-10

An attorney represents a client who is under indictment for homicide. In the course of the representation, the client told the attorney that she had previously killed two other people. These murders are completely unrelated to the murder indictment for which the attorney is providing representation. With the client's consent, the attorney made a tape recording of the client's confession regarding the unrelated homicides. At the attorney's request, the client also drew a map of the remote locations of the victims' graves from the unrelated killings. Those bodies have not been found by the police, and the client is not a suspect in either crime, both of which remain unsolved.

Is the attorney subject to discipline if he fails to voluntarily disclose to the authorities his knowledge of the two prior murders and the locations of the victims' bodies?

People v. Belge372 N.Y.S.2d 798 (Sup. Ct. Onandaga Cty 1975)

Question 4-11

A lawyer represents a client charged with murder. When interviewing the client about what happened, the client says "I hope they don't find out about that other murder I did in Virginia. If they do, they'll put me on death row." At the lawyer's request, the client then gives the details about the other murder. The lawyer does some surfing on the internet and finds out that another person has been convicted of that murder in Virginia, and is awaiting execution for the crime. The lawyer discloses the information to the authorities. Eventually the person convicted of that murder is released and the lawyer's client is convicted and sentenced to death.

Is the lawyer subject to discipline?

Question 4-12

A lawyer is representing a client who has been charged with murder. The murder weapon, a gun, has never been found. In a conference with the lawyer, the client says: "I'm worried about them finding that gun. I can't see any way out other than to get rid of it. I'm going to throw it in the swamp tonight, they'll never find it there." After the client leaves, the lawyer calls the police and tells them about the client's plan. The police then follow the client and arrest him just before he is going to throw the gun away.

Is the lawyer subject to discipline?

Question 4-13

Attorney has been hired by Client to represent Client in a civil commitment proceeding initiated by the state. Client is now undergoing psychiatric evaluation to determine whether civil commitment should be ordered. Client told Attorney that Client intends to commit suicide as soon as the tests are completed, and Attorney believes that Client will carry out this threat. Suicide and attempted suicide are crimes in the state.

Is it proper for Attorney to disclose Client's intentions to the authorities?

Question 4-14

Attorney represented Client in negotiating a large real estate transaction. Buyer, who purchased the real estate from Client, has filed suit against both Client and Attorney, alleging fraud and violation of the state unfair trade practices statute. Attorney had advised Client by letter against making the statements relied on by Buyer as the basis for Buyer's claim. Attorney and Client are each represented by separate counsel. In responding to a deposition under subpoena, Attorney wishes to reveal, to the extent Attorney reasonably believes necessary to defend herself, confidential information imparted to Attorney by Client that will be favorable to Attorney but damaging to Client.

Is it proper for Attorney to reveal such information?