Professional Responsibility

Week 9

• Note that there's no overarching moral duty to reveal confidential information, except in conditions of immanent threat. And even that varies from state to state.
• Reasons why we spend effort defending guilty people: general benefit of society, importance of due process. We may one day have to defend ourselves agains the public, should we one day get a defendant off, who is known to be guilty. We also will have to live with ourselves in that event: we need to believe that it's a virtue to society that this happens.
• Privileges are a evidentiary rules: they apply only in hearings, disallowing certain kinds of testimony.
• Attorney-client privilege is owned (and can only be waived by) the client; the attorney can assert it on behalf of the client. It only covers communications related to the representation. It doesn't cover facts: you can't hide facts by telling them to your lawyer and then claiming privilege. It extends to representatives of the lawyer (assisting in the rendition of services).
• If you disclose to a non-essential third person, even by mistake, the privilege is waived. In WI, if it's the attorney's mistake, the court might not want to penalise the client for this error.
• The definition of who, in a corporation, owns the privilege is a little hazy (i.e., "the control group"), and it may be broader in federal court.
• Does unjust imprisonment qualify as the immanent harm exception to the confidentiality rule?
• Work-product exception: Will be on the exam Know what Dudek (WI) and Hickman are. There's no work-product privilege, but there's a work-product exception to discovery: §804.01.
• Handout 1: 5a rights in civil case: you can infer guilt from invocation of 5a in civil matters (this includes disciplinary matters). There might be an exception if there are parallel criminal matters pending-- can't admit on one side, and just get that ported over to the other side.
• Conflicts-- we've seen prospective and former clients, conflicts between attorney and client. You may not represent a client with whom you have a conflict: the requirements of loyalty and independent judgment. You need to have loyalty to every client. Those are the underlying reasons for all the rules on conflicts.
• The ability to recognize and analyze conflicts is very important; one of the most important skills we need. Still, there can be ambiguities (what's a "substantial relationship?" what's a "material limitation?" what is a "significant risk?" what is "direct adversity?"). It's fact-specific-- it depends on who is involved and what relationships there are, and the facts can shift. There are even differences in terminology between the specific conflict rules.
• There will be conflicts questions on the exam; we need to learn how to recognize the situation and find the appropriate rule.
• Handout 2: summary of rules addressing conflicts.
• The Hurley case. 8.4(c) : misrepresentation; c.f. 3.8 : prosecutor.
• 1.7: ignoring informed consent: you need to withdraw from representation of one or both parties if you have a concurrent conflict of interest.
• Written assignment: write a letter explaining a concurrent conflict of interest.
• Two definitions of conflict.
  • The representation of one client is directly adverse to the interest of another
  • Significant risk of material limitation.
  These more or less say the same thing
• You can't represent the seller if the buyer is one of your clients, e.g.
• Handout 3: some conflict reprimands.
• Informed consent is the essential thing, and it's a legal term of art. We see this all the time with medical permissions, but it seems like lawyers might not really make people as informed as they could/should be.
• 1.7(b): if you can't meet those conditions, you can't continue to represent. Note that requirements about what conflicts can't be waived might be governed by case law.
• Collaborative divorce: is there an informed consent form? Creative point: maybe they assert there's no claim being asserted (1.7(b)(3))?
• Comment 25: in class actions, you don't have to worry about clients for unnamed parties.