Professional Responsibility
Week of 8-4-08
Week 10
- Back on confidentiality: what we tell our clients about
confidentiality. It doesn't make sense just to say
"yes, everything you tell me is confidential." A
blanket statement like that can lead to trouble. So
we should think about what to tell a client when they
ask if what they tell us is confidential.
- Handout 1: grid of factors organizing confidentiality
material.
- Back to 5-6: note that a lot of what the president says
about Pearl is probably confidential (facts about
mismanagement, etc.).
- Problem 5-7: 1.8(f) - client has to give informed consent
to another party paying.
- Handout 2: the evidence of the 3rd officer's participation
was not presented, one guy got convicted, there was
ineffective assistence of counsel, and the conviction
was overturned.
- 1.9: duties to former clients. The distinctions between
the three sections are subtle. More disciplinary
cases deal with former clients than any other sort.
- This is another of the rules that defines the role of
the lawyer: loyalty and confidentiality. Note
that 1.18 defines prospective clients as being
like former clients.
- Note that all former client conflicts can be waived,
unlike concurrent conflicts.
- Problem 6-1: sending a letter explicitly indicating
that a relationship is over would probably go a
long way in court. Note that this isn't per se
a conflict-- you can sue former clients, but c(1)
and (2) prohibit use of information in an adverse
way. That's what Maritrans was about (p. 365);
also comment 3.
- Note p. 351: the citation to Picker Intl. v Varian
Assocs.. This is persuasive authority at best.
There's really no authority saying who you can drop
or not drop when you have a conflict, in spite of
what the text says. It would be good practice to
stick with the one with whom you have the closer
and more confidential relationship.
- Informed consent: probably this very seldom happens.
Not accepting the representation is way more popular
(as it deciding that you don't need consent). It's
hard to know what "informed" consent means in a given
context.
- Handout 3: some example waiver letters. Note the back
page-- effort to prospectively limit the risk of
being "conflicted out." (see 1.18, comment 5).
- 1.10: imputed disqualifications. New firms and moving
around firms. Note that the ABA is much more limited
with respect to screening than WI: here it's allowed
by default. We may be asked if a certain
situation can be resolved by screening, but we will
not be required to name the three things the ABA says
can be screened.
- Handout 4: OLR reprimands. Note that prior discipline is
an aggravating factor in OLR proceedings.
- Special conflicts rules: people who have previously been
judges, government lawyers, etc. We have these to
avoid penalizing public servants. 1.11, 1.12. They
are strangely different wordings, although the purpose
is pretty much the same. Basically, these people
are less dangerous in terms of conflicting out firms.
The requirement is written notice, and no "personal
and substantial" participation.
- Conflicting people out: p. 297. See comment 2 to 1.18:
not safe to rely on this 100%, but the idea is that
conflicting-out shouldn't be allowed. Better to
heed coment 5, and get it in writing.