ACP Flashcards
What are the elements of an acp via rst 68
(1) a communication
(2) made between privileged persons
(3) in confidence
(4) for the purpose of obtaining or providing legal assistance for the client.
acp vs 1.6
acp= talking about a FORCED REVEALMENT of information ; evidentiary rule
1.6 confidentiality= a VOLUNTARY REVEALMENT of info ; ethical rule
what kind of info is covred by acp? what about 1.6
1.6 – applies to all confidnetial info
acp – only to confiendital communcation between privlaged persos for legal advice
does it apply to disclusore or use
acp v 1.6
1.6 both
acp – only to disclosure
is it still confitiemtial privileged if third party knows
1.6 still confidemtial even if third party disclosure (unless gen known)
acp - third party dicslosure typiclally ruims privlage
the first element of acp is communication – governed by rst 69
how is it generally defined
any expression through which a privileged person conveys info to another privileged person and any document or other record revealing such expression
communiation element of acp says ‘any expression”
are these expressions limited to speaking?
not limited to speaking, can include acts/gestures
comment j to rst 69 that defines communication says that it does not cover underlying facts or pre-existing documents
what does this mean?
you can’t make a document privileged just by giving it to a lawyer
As to underlying facts
Because the privilege protects only communications, it does not protect the underlying facts pertinent to the representation
which of the following is covered by the acp via the communication requirement
Asking a client: was the light red= not covered by ACP
Asking a client: did you tell your lawyer the light was red=covered
element two of acp (made between privileged persons) ; the rst section 70 defines who a privileged person is – who are they
the client (including a prospective client), the client’s lawyer, agents of either who facilitate communications between them, and agents of the lawyer who facilitate the representation.
who is a client’s agent for communication as defined by the rst 70 privilaged person
if the persons participation is reasonably necessary to facilitate the client’s communication with a lawyer or another privileged person and if the client reasonably believes that the person will hold the communication in confidence
who is a lawyers agent for communication as defined by the rst 70 privilaged person
Nonlaywer staff and other people the attorney uses to provide the client with legal services can be agents
why is it important that we understand who is and is not a privileged person
You need to understand who would be a privileged person vs a stranger who would ruin the privilege
element three of acp – in confidence
defined by rst 71
when is a communication in confdience
Person reasonably believes no one will know the contents of the communication excpet other privliaged persons
do eavesdroppers ruin privilege
no not usually
what do parties need to do to keep communications confidential
Parties need to make reasonable effort to keep communications confidential
US v. Hatcher – in confidence
A robbery case involving jewelry
The convos with the co-conspirators to the robbery took place while they were locked up and parties to the convos understood that they were being recorded
Issue: are the convos privileged between the inmates and their lawyers
Not in confidence- both parties knew that all convos were recorded
Had they not known they were being recorded, it would be covered
they could not REASONABLY EXPECT that their conversations would remain private
the fourth and final elment of the creation of acp (for the purose of legal advice)
is defined by rst 72 – when is A communication is made for the purpose of obtaining or providing legal assistance
if it is made to someone who is a lawyer (or who the client or prospective clarinet reasonably believes is a lawyer) and the client consults with the lawyer for the purpose of obtaining legal advice
for the last elment of creation of acp ( for the purpose of legal advice)
Tough questions most commonly arise with in-house attorneys who are also business execs (eg attorney is both general counsel and CFO).
GC who is also the CFO writes a memo about cost - cutting measures the company could take. Privileged?
Likely no.
County of Erie – for the purpose of legal advice
The judge ordered production of ten emails which reviewed the law concerning strip searches of detainees, assessed the county’s current search policy, recommended alternative policies, and monitored the implantation of these policy changes
Reasoned that the communications go beyond rendering legal analysis into the realm of policy making and administration
No legal advice was rendered apart from policy recommendations
Issue
Whether the communications were made for the purpose of obtaining or providing legal advice as opposed to advice on policy
Each of the ten disputed emails was sent for the predominate purpose of soliciting or rendering legal advice
Advice re a policy compliance with law, and related issues are for the predominant purpose of providing legal advice.
rest 82 gives us an expcetion to the acp via the client crime or fraud – in what two situtaion swill the acp NOT applu to a communication
when a client either
1) consults a lawyer for the purpose, LATER ACCOMPLISHED, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so or
regardless of the client’s purpose at the time of consultation, uses the lawyer’s advice or other services to engage in or assist a crime or fraud.
the first crime fraud exception is the following
1) consults a lawyer for the purpose, LATER ACCOMPLISHED, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so
give an example
Client asks attorney to help set up bank account to launder money. Attorney says no and tells C not to launder money. C launders the money.
the second crime fraud excpetion is the following
Regardless of the client’s purpose at the time of consultation, uses the lawyer’s advice or other services to engage in or assist a crime or fraud.
give an example
Client asks lawyer to set up a bank account for client’s business.
Client also uses the bank account to help her grandfather hide
money from the IRS.
does the crime fraud excpetion apply to crimes completed
no; Later accomplished= ongoing crimes
rst section 75 tells us about the privilage of co-clients
what does it say
Communications between co-clients and attorneys are privileged as to third parties (as long as communications meet the four elements)
Not between the co-clients in a subsequent adverse proceeding between the two of them
via co client acp, can each co client waive their own acp?
yes but only with respect ot the client’s communication with the attorney ; CANNOT WAIVE ON BEHALF OF THE OTHER CO-CLIENT
