Terms in this set (18)
A lawyer who receives a doc relating to representation of lawyer's client and knows or should know that it was inadvertently sent shall notify sender
*Comment 2: Notify sender so they can take protective measures
Duties to Prospective Client: (b) a lawyer who learns info from a prospective client shall not use or reveal that info except as Rule 1.9 would permit w/r/t former client
(c) shall not rep client w/ interests materially adverse to those of a prospective client in the same or a substantially related matter if lawyer received info that could be harmful
*Duty of confidentiality attaches!
Confidentiality of Information
(b) A lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm
Comment 3: A-C P and W-P D apply in judicial and other proceedings in which a lawyer can be called as a witness or otherwise required to produce evidence concerning a client. Rule of confidentiality applies in situations other than those where evidence is sought from lawyer. For example, applies to all info relating to representation, whatever its source. Lawyer cannot disclose such information except as authorized or required by the Rules.
2 Most Important Elements of Crime-Fraud Exception
1. Identify: Does client have wrongful intent?
2. In furtherance of crime or fraud?
3. Meet burden of proof
In some courts, have to show elements of crime or fraud were established
The agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
Client with Diminished Capacity
(b) When the lawyer believes the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken...lawyer may take reasonable necessary protective action, including consulting w/ individuals or entities that have the ability to take action to protect the client
Rule 1.16: 2 Categories
Declining or Terminating Representation
(a): Lawyer shall not represent someone where doing so is (1) a violation of the Rules
(b)(2): Fraud: Obligated to withdraw ("the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent")
*Key: (a) = Future tense: Will result
(b) = Paste tense: Client has already used your support to perpetrate a crime
Candor Toward the Tribunal
Lawyer shall not knowingly: make false statements, fail to disclose, offer false evidence, or represent a client engaging in crime or fraud
Swidler & Berlin
Supreme Court rejected attempts to limit the privilege by balancing it against other concerns and did not use the fairness balancing test.
- Know that exception exists per In re Chevron and don't have to use test
State v. Olwell
Court held that an attorney must turn over an incriminating weapon when requested by subpoena but should do so w/o revealing source or manner in which it was obtained.
In re Ryder
Suspended lawyer who moved a sawed-off shotgun and stolen money from his client's safety deposit box to his own.
Morrell v. State
Friend of D cleaned out his car at attorney's request. He discovered a kidnap plan and turned it over to the attorney. The attorney consulted the Alaska bar ethics committee, which advised him to return it to the friend, counsel the friend on laws governing concealment of evidence, and withdraw from the case if it became obvious that an ethical violation would result. The attorney withdrew and tried to return the evidence. The friend was reluctant, so the attorney helped arrange its transfer to the police. D was convicted and appealed on grounds of ineffective assistance of counsel. Court rejected claim, reasoning attorney would've been obligated to see that evidence reached prosecutor even if he got it from D, and his obligation was even stronger since he got it from a 3rd party.
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 the attorney-client privilege.
Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding...unless there is a basis in law and fact for doing so that is not frivolous
Fairness to Opposing Party and Counsel
(a) a lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully...conceal a document or other material having potential evidentiary value
(b): A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness
that is prohibited by law.
Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact of law to a third person; or
(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 1.7, comment 24
A lawyer can represent clients with adverse interests without creating a conflict of interest. A conflict only exists if there is a significant risk that the lawyer's action for one client will limit their effectiveness in representing another. Ex: Where a decision favoring one client will create precedent weakening the other client's position.
Factors to determine whether client need be advised of risk:
• Where the cases are pending
• Whether the issue is substantive or procedural
• The temporal relationship between the matters
• The significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer
Rule 1.9, comment 3
Matters are "substantially related" if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent manner.
Ex: Lawyer who has represented a businessperson and learned extensive private information about them may not represent that person's spouse in seeking a divorce.
Ex: A lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations. But the lawyer would not be precluded from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent.