Intersection of privilege against selfincrimination and attorneyclient privilege

• Intersection of privilege against selfincrimination and attorney-client privilege

• Begin with privilege against selfincrimination and documentary evidence • Criminal defendant can be compelled to turn over incriminatory evidence – Unless act of responding to request is itself testamentary – “Turn over the weapon you used to kill X. ”

• Now 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 selfincrimination in the hands of the client

• 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?

Obstruction of Justice

• 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

• 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. • Is 3. 4 violated?

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?

• 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?

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

• 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. • Has the lawyer obstructed justice?

• 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. • 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?

• 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.

Work-Product Privilege FRCP 26(b)(3) • 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). • can be overcome if • substantial need and cannot, without undue hardship, obtain their substantial equivalent by other means

• Duty of Confidentiality

• MR 1. 6 • Lawyer shall not reveal information related to representation of a client • unless • client gives informed consent • or impliedly authorized in order to carry out representation • or an exception applies (will discuss later)

• MC DR 4 -101(A) • "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

• A friend of a lawyer tells the lawyer at a dinner party that X has a shoplifting conviction. The friend does not know that the lawyer represents X in connection with a subsequent shoplifting arrest. • Is this confidential information under the Model Rules?

• While investigating a client’s defense in a drunk driving case, the lawyer discovers that the client is considering a divorce. • Is this confidential information under the Model Rules?

• A lawyer learns from a client, whom he is representing in a negligent driving case, that, although the client must wear glasses when driving, his prescription is very weak. At a cocktail party the lawyer tells a number of friends about the client’s prescription, as an example of how strict the rules for wearing glasses while driving really are. • Did the lawyer reveal a client confidence under the Model Rules?

• Can allow a lawyer to reveal confidential information to another lawyer (who is not a member of his firm) in order to get the other lawyer’s informal legal opinion about the case?

• What about revealing client confidences in order to determine how the lawyer can abide by disciplinary law?

• 1. 6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: … (4) to secure legal advice about the lawyer's compliance with these Rules;

• The duty of confidentiality also applies to the use of confidential information by the lawyer in addition to its communication to others. Here too the Model Rules and the Model Code sometimes differ.

• A lawyer is processing a patent application for a corporation. The information he gains from the client leads him to believe that the patent is very valuable. The lawyer therefore buys 100 shares of the corporation’s stock, which is traded publicly, without telling the client. The share price of the corporation goes up.

• The Model Code [DR 4 -101(B)(2)-(3)] • Lawyer cannot: • (2) Use a confidence or secret of his client to the disadvantage of the client. • (3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.

1. 8(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

• A lawyer helps a client draw up the documents for purchasing a plot of land upon which the client is going to build a gas station. The lawyer figures that once the gas station is build, the land next to it will be prime real estate for a fast food restaurant. After the client buys the property and the lawyer-client relationship is terminated, but before the gas station is built, the lawyer buys the land next to the client’s. The fast-food restaurant he subsequently builds on the property is a big success. • Is this in violation of The Model Rules?

• 1. 9(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: • (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

• Duty of confidentiality concerning prospective clients

• 1. 18 • (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.

Exceptions to the duty of confidentiality

• lawyer may reveal confidence • 1. 6(b)(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

• Your client sues you for malpractice claiming that you failed to accept an offer for settlement from opposing counsel before it was withdrawn. • In fact, the client indicated doubts about whether the offer should be accepted. • You reasonably waited until the client resolved his doubts before trying to accept. • May you reveal this confidential information in the malpractice action?

• If the client simply publicly accuses you of malpractice but does not sue you, may you reveal this information in order to exculpate yourself in the eyes of the public?

• Comment [10] …The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

More problematic cases: • third party charges • preemptive revelations

• Third party claims that lawyer committed malpractice • lawyer reveals confidential communications to show that it was all client’s fault

• Preemptive revelation of client confidences • Revelations before charges, because they will be most credible then

• A client consults you about a business that you think amounts to an illegal Ponzi scheme. You inform him of this and refuse to represent him in connection with it. You later find out that he is pursuing the scheme anyway. May you use the selfdefense exception to inform the victims of the scheme or to inform the authorities?

• Could you use the preemptive self-defense argument if you have a memo to file clearly demonstrating that you are not involved?

1. 6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (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; • (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;

• Things to keep in mind when you find out our client is bad in a way causing financial harm (worry about physical harm later)

• is the information confidential at all? – No – then can be revealed (eg not related to representation) • But be careful, if you got it in the course of the representation, probably will be considered related to the representation – Yes – then must find exception

• Is/was client engaged in crime/fraud? – NO • Cannot use the exceptions in 1. 6(b)(2)-(3) • BUT might be able to use preemptive selfdefense – But this is a dangerous route to take – And would work only when lawyer reasonably believes preemptive revelation is necessary to defend herself – Usually revealing after an accusation of involvement is made is enough

– Yes (client is/was engaged in crime/fraud) • Were the lawyer’s services involved? • No – Then may not speak – Unless preemptive self-defense, but that would be very unlikely if the lawyer’s services were not involved • Yes –Then may (not must) speak to prevent or rectify IF injury is substantial

NOTE: even if injury is not substantial » If client is still engaged in crime/fraud, must withdraw from representation in that matter

• In addition, if those being defrauded are relying on a document the lawyer drafted, such that continuing to represent the client in any capacity would give credibility to the document, the lawyer must withdraw from all representation, or will be counseling or assisting crime/fraud – And if failure to renounce the document would continue to assist the crime/fraud MUST (not may) renounce and disclose in manner sufficient to end reliance (MR 4. 1) – unless disclosure is prohibited by Rule 1. 6 • that is, must fall under 1. 6(b)(2)-(3) – must be substantial injury

• what if it is not protected by 1. 6(b)(2)-(3) – old noisy withdrawal theory? • dangerous – use preemptive self-defense • dangerous

• Client tells lawyer that he is going to embark on big Ponsi scheme that will result in substantial injury and asks for his legal help • May lawyer represent client in the matter? • May lawyer represent client in other matters? • May lawyer reveal confidences to keep people from being financially harmed?

• May he withdraw from all representation even though material adverse effect on client?

• 1. 16(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: • (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; • (3) the client has used the lawyer's services to perpetrate a crime or fraud; • (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

• Client has been working for lawyer in what he later realizes is a big Ponsi scheme that will result in substantial injury. He did all the work in private – no one suffering from the scheme is aware of his involvement or has seen any document that he has worked on • May lawyer reveal confidences to keep people from being financially harmed

1. 6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (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; • (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;

• Must lawyer reveal confidences?

Exception to duty of confidentiality for organizational client

1. 13(c) Except as provided in paragraph (d), if • (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and • (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1. 6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

• It’s about protecting your organizational client NOT protecting outside parties!

• old MR did not allow client to reveal client’s intention to commit crime unless to prevent client from committing criminal act that the lawyer believed likely to result in imminent death or substantial bodily injury • Model Code (DR 4 -101(c)(3)), Virg R Prof Resp – May (Va MUST) reveal intent of client to commit crime and info nec to prevent client from committing crime (irrespective of dangerousness)

1. 6(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;

• Your client, whom you are representing in a divorce proceeding, tells you that her husband is furious at his lawyer and plans to beat him up. She requests that you keep this quiet. • May you inform opposing counsel?

• Spaulding v. Zimmerman (Minn. 1962) • the defendant’s lawyers (and perhaps the defendant), but not the plaintiff or his counsel, are aware that the plaintiff has a life threatening aneurism resulting from accident caused by defendant’s negligence. • Assuming that the defendants do not want to divulge the information, may their lawyers do so anyway?