Professional Responsibility

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.