Chapter 8 - Confidentiality Exceptions: Lawyer Interest and Compliance with Other Law

Question 1

Securing Legal Advice: Model Rule 1.6(b)(4)

Answer 1

When uncertain about their legal or ethical obligations, lawyers must seek advice about how to proceed and must be able to disclose enough confidential information to get a second ethical opinion.

Question 2

Securing Legal Advice: So Rule 1.6 adds a specific exception:

Answer 2

A lawyer may reveal information relating to the representation of a client to … to secure legal advice about the lawyer’s compliance with these Rules;

Question 3

Securing Legal Advice: Comment 9, elaborates:

Answer 3

A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct.

Question 4

Securing Legal Advice: ABA Formal Op. 98-411 also deals with lawyers seeking ethical advice from other lawyers and recommends what kind of format?

Answer 4

a hypothetical format:

The same precautions apply when lawyers are asked questions at a dinner party or during a presentation. A person asks, “I have a cousin who needs to know if …” Lawyer should respond: “Your cousin will need a lawyer to look at his specific situation, but let’s say that Paul Person has a cousin named Casey and Casey needs to know if …”

Question 5

Lawyer Self-Defense: Model Rule 1.6(b)(5)

Answer 5

A lawyer may reveal information relating to the representation of a client to … to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Question 6

Lawyer Self-Defense:How nice that…

Answer 6

a specific exception protects lawyers and their interests, while often no such exception exists to protect innocent third parties (for example, an innocent person in jail for a crime your client admits to committing).

Question 7

Lawyer Self-Defense: As with other exceptions..

Answer 7

lawyers may disclose just enough confidential client information to establish the claim or defense.

Question 8

Lawyer Self-Defense: RLGL § 63 Using or Disclosing Information When Required by Law

Answer 8

A lawyer generally is required to raise any reasonably tenable objection to another’s attempt to obtain confidential client information (see § 59) from the lawyer if revealing the information would disadvantage the lawyer’s client and the client has not consented (see § 62), unless disclosure would serve the client’s interest (see § 61).

Question 9

Lawyer Self-Defense: RLGL § 63 Using or Disclosing Information When Required by Law - The duty follows from the general requirement that…

Answer 9

the lawyer safeguard such information (see § 60) and act competently in advancing the client’s objectives (see § 16(1)).

Question 10

Lawyer Self-Defense: RLGL § 63 Using or Disclosing Information When Required by Law -The duty to object arises when…

Answer 10

a nonfrivolous argument (see § 110) can be made that the law does not require the lawyer to disclose such information. Such an argument could rest on the attorney-client privilege (see § 86(1)(b)), the work-product immunity (see § 87), or a ground such as the irrelevance of the information or its character as hearsay.

Question 11

Fairness: Model Rule 3.4(a)

Fairness To Opposing Party and Counsel

Answer 11

A lawyer shall not … unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

Question 12

Fairness: Model Rule 3.4(f)

Fairness To Opposing Party and Counsel

Answer 12

A lawyer shall not … request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
the person is a relative or an employee or other agent of a client; and
the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

Question 13

Fairness: RLGL § 119

Physical Evidence of a Client Crime

With respect to physical evidence of a client crime, a lawyer:

Answer 13

1. may, when reasonably necessary for purposes of the representation, take possession of the evidence and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy material characteristics of the evidence; but
2. following possession under Subsection (1), the lawyer must notify prosecuting authorities of the lawyer’s possession of the evidence or turn the evidence over to them.

Question 14

Candor Toward The Tribunal

Model Rule 3.3(a)

Candor Toward The Tribunal

A lawyer shall not knowingly:

Answer 14

A lawyer shall not knowingly:

make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

Question 15

Model Rule 3.3(c) The duties stated in paragraphs (a) and (b) continue _______, and apply _______

Answer 15

1) to the conclusion of the proceeding

2) even if compliance requires disclosure of information otherwise protected by Rule 1.6.

Question 16

“Knowingly,” “Known,” or “Knows”

Model Rule 1.0 Terminology

Answer 16

“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
“Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

Question 17

Model Rule 3.9

What is a tribunal?

Rule 1.0 (m) “Tribunal” denotes…..

Answer 17

a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.

Question 18

Advocate In Nonadjudicative Proceedings

Answer 18

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.

Question 19

Model Rule 3.3(a)(3)

Candor Toward Tribunal

Comment [13]; RLGL § 120

Answer 19

A lawyer shall not knowingly … offer evidence that the lawyer knows to be false &…; A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Question 20

Model Rules & Client Perjury

Answer 20

Client has the absolute right to take the stand and testify under oath. Client advises he will be lying on the stand. Now what?

Your duty of candor to the tribunal now conflicts with your duty to keep your client’s confidences.

Question 21

Monroe Freedman’s describes this as a “trilemma”:

Answer 21

The need to know facts (competence, diligence);
The obligation to keep them confidential;
The duty not to mislead the court.

Question 22

Belge

Answer 22

Dead body: Required reporting to proper authorities (similar to abuse reporting). Fifth amendment right against self-incrimination, applies to counsel, who is additionally affirmatively required to withhold disclosure
* did not alter or conceal, or destroy evidence

Confidentiality Exception: Physical Evidence

Question 23

Casey

Answer 23

Minor misidentified. Lawyer guilty of fraud on court and in violation of 3.3(a)(1), 1.2(d) (counseling client to engage in crime/fraud) and 8.4(d) (engaging in conduct prejudicial to administration of justice)

Confidentiality Exception: Representation of Fact and Law

Question 24

By becoming complicit, the lawyer, in the least, violates what rules?

Answer 24

1.2(d), 3.3(a)(1+2), and 8.4(c)

Question 25

A subordinate lawyer is accountable for direction by superior unless

Answer 25

it is arguable question of law/fact

Question 26

Forrest

Answer 26

Client died and atty never disclosed until opposing counsel required medical exam after settlement. Violated 3.3(a).1.6(b)(6), 3.4(a), 8.4(c)

misrepresentation of material fact to an adversary or a tribunal in the name of “zealous representation” never has been nor ever will be a permissible litigation tactic

Confidentiality Exceptions: Failure to Disclose Facts

Question 27

Hendrix

Answer 27

Didn’t reveal adverse rule. Violated 3.3(a)(2)

Confidentiality Exception: Failure to Disclose Law

Question 28

Shaffer

Answer 28

• GOVT atty’s fail to supplement or correct the record containing misrepresentations about the principal’s credentials
• DC DISMISS the case
• Judges are master of their domain. Many remedies at their command not just wrist slaps under rules

Question 29

Nix v. Whiteside

Answer 29

Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely

Question 30

What does “know” mean? (perjury)

Answer 30

Absent the most extraordinary circumstances, such knowledge must be based on the client’s expressed admission of intent to testify untruthfully

i.e. they say: “I’m going to take the stand and lie.”