ACP

Question 1

What are the elements of an acp via rst 68

Answer 1

(1) a communication
(2) made between privileged persons
(3) in confidence
(4) for the purpose of obtaining or providing legal assistance for the client.

Question 2

acp vs 1.6

Answer 2

acp= talking about a FORCED REVEALMENT of information ; evidentiary rule
1.6 confidentiality= a VOLUNTARY REVEALMENT of info ; ethical rule

Question 3

what kind of info is covred by acp? what about 1.6

Answer 3

1.6 – applies to all confidnetial info

acp – only to confiendital communcation between privlaged persos for legal advice

Question 4

does it apply to disclusore or use

acp v 1.6

Answer 4

1.6 both

acp – only to disclosure

Question 5

is it still confitiemtial privileged if third party knows

Answer 5

1.6 still confidemtial even if third party disclosure (unless gen known)

acp - third party dicslosure typiclally ruims privlage

Question 6

the first element of acp is communication – governed by rst 69

how is it generally defined

Answer 6

any expression through which a privileged person conveys info to another privileged person and any document or other record revealing such expression

Question 7

communiation element of acp says ‘any expression”

are these expressions limited to speaking?

Answer 7

not limited to speaking, can include acts/gestures

Question 8

comment j to rst 69 that defines communication says that it does not cover underlying facts or pre-existing documents

what does this mean?

Answer 8

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

Question 9

which of the following is covered by the acp via the communication requirement

Answer 9

Asking a client: was the light red= not covered by ACP
Asking a client: did you tell your lawyer the light was red=covered

Question 10

element two of acp (made between privileged persons) ; the rst section 70 defines who a privileged person is – who are they

Answer 10

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.

Question 11

who is a client’s agent for communication as defined by the rst 70 privilaged person

Answer 11

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

Question 12

who is a lawyers agent for communication as defined by the rst 70 privilaged person

Answer 12

Nonlaywer staff and other people the attorney uses to provide the client with legal services can be agents

Question 13

why is it important that we understand who is and is not a privileged person

Answer 13

You need to understand who would be a privileged person vs a stranger who would ruin the privilege

Question 14

element three of acp – in confidence

defined by rst 71

when is a communication in confdience

Answer 14

Person reasonably believes no one will know the contents of the communication excpet other privliaged persons

Question 15

do eavesdroppers ruin privilege

Answer 15

no not usually

Question 16

what do parties need to do to keep communications confidential

Answer 16

Parties need to make reasonable effort to keep communications confidential

Question 17

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

Answer 17

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

Question 18

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

Answer 18

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

Question 19

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?

Answer 19

Likely no.

Question 20

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

Answer 20

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.

Question 21

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

Answer 21

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.

Question 22

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

Answer 22

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.

Question 23

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

Answer 23

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.

Question 24

does the crime fraud excpetion apply to crimes completed

Answer 24

no; Later accomplished= ongoing crimes

Question 25

rst section 75 tells us about the privilage of co-clients

what does it say

Answer 25

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

Question 26

via co client acp, can each co client waive their own acp?

Answer 26

yes but only with respect ot the client’s communication with the attorney ; CANNOT WAIVE ON BEHALF OF THE OTHER CO-CLIENT