Professional Responsibility
Week of 7-26-08
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.