Confidentiality Flashcards
Attorney Client Privilege
1) Client
2) Communicates
3) To Counsel
4) For Counsel
5) Confidentiality
6) Only client can waive confidentiality
Client
1) Ways of creating attorney-client relationship
a) Contract
b) Court appointed
c) The individual believes that the relationship exists and that belief must be reasonably formed based on attending circumstances
i) Attending circumstances
a) Attorney’ words and actions
1) Quantity (one conversation - longer they talk, the more likely they are in an attorney-client relationship)
2) Quality - nature of what was said and what wasn’t said. Ask questions, take notes, talk money?
b) Individual’s words and actions. How much of the story they disclosed
Did they ask questions
c) Surrounding circumstances
Where was the meeting?
What were the means of communication?
Who else was present in the meeting?
2) Is the client a person or an entity?
If your client is an entity, who in the entity are you representing and who are you not representing? You must pin down for reasons of ACP/confidentiality/loyalty to determine what human beings are required to be covered under the privilege.
If a person, then you know your client is that person.
Communicates
1) Is it a “communication” or a thing
a) If communication, element is met
b) Thing - move on
2) Things that are 5th amendment protected
a) Yes - communication
b) No - go to 3
c) Determine
i) Mere evidence (Fifth amendment protected)
ii) Fruit or instrumentality (Not Fifth amendment protected) Fruit of a crime is a consequence of a crime. Instrumentality is the actual things used to commit the crime.
3) Did lawyer observe or test? Or did they destroy, alter or possess?
a) Okay to test or observe. Not ok to destroy, alter, or possess
For Counsel
1) Relate to the representation
a) Has to be about something the lawyer can do
b) What the lawyer can’t do: can’t assist or counsel client in future criminal behavior
c) What lawyer can do:
i) What is legal and what penalties
ii) Advice on past conduct
ACP Path of Law
1) Is there a legal compulsion to disclose? (legal compulsion = ACP ; no legal compulsion = Rule 1.6
2) Does ACP apply? (6 C’s)
3) If it applies, does it protect?
a) Is the ACP absolute or limited
i) If limited, then balance clients interest in confidentiality vs. state’s interest in disclosure
1) Clients interest in confidentiality are constant and gets a lot of weight
a) The right against self-incrimination (5th)
b) The right to effective assistance of counsel/Right to counsel (6th)
2) Government’s interest in disclosure are variable based on statute used. What to look at when determining weight (this could be an exam question with obstruction of justice violation rather than that was just a health code violation like in Belge.)
a) What statute forces compulsion to disclose
b) Nature of the statute (criminal, health, education, etc)
c) How often used and consistent it was used
If absolute, you do not have to disclose
Rule 1.6 (a) Confidentiality of Information
1) A lawyer
2) Information
3) Client
4) Information must relate to the information of that client
5) Shall not reveal
Consequence = they go after your license
Rule 1.6 (a) Exception
a) Client gives consent
1) That is informed
b) Implied authorization to carry out representation (filing a claim in court)
c) Anything in paragraph B
Rule 1.6 (b)(6)
Lawyer may reveal to comply with other law or court order
Seeking Legal Advice
a) Who did you call
1) Length of time known
2) What is their reputation
b) What resources and time did they have available
c) Nature of discussion
Togstad 4 Takeaways
1) Remember who you are talking to. He screws up by talking to the potential client as he did.
2) Never communicate by omission/silence - “if you don’t hear from me…” No do not do this.
3) Follow up in writing. You have a meeting and then follow up in a detailed letter/email on what advice was given and what everyone’s responsibilities are.
4) Filing is part of the job and notes to the file are as well. Miller should’ve made a note of when he talked to Hvass and he doesn’t know because he didn’t make a note to the file.
Spaulding
plaintiff had an aorta aneurysm and the defendants attorneys found it but didn’t share the information to the Plaintiff or his attorneys because he wanted to settle the case.
The court vacated the settlement because the lawyer had a legal compulsion to disclose because he was a minor.
ACP
Ryder
ACP
An attorney violates the rules of professional conduct by taking possession of criminal evidence with the intent to conceal it from the prosecution.
Attorney took his clients evidence of his crime into his own possession (money and gun).
An attorney violates the rules of professional conduct by taking possession of criminal evidence with the intent to conceal it from the prosecution. An attorney’s act of taking possession of material evidence falls outside the ambit of the type of confidential communications protected by attorney-client privilege.
Belge
ACP because he had a legal compulsion to disclose.
Francis Belge was a lawyer for Robert Garrow, who was accused of murder. Garrow told Belge that he had killed other people and showed him where the bodies were. Belge tried to use this information to get a plea deal for Garrow, but the prosecutor refused. After Garrow was found guilty, Belge admitted that he knew about the other bodies but didn’t tell anyone because of attorney-client privilege. The prosecutor then charged Belge with breaking a law that says you have to tell the police if you know someone died without medical attention.
A client’s Fifth Amendment right against self-incrimination also exempts his attorney from disclosures that would incriminate the client. A person’s right against self-incrimination would be severely weakened if not eliminated if the person’s attorney could be compelled to disclose confidential communications about a crime the person committed. The attorney-client privilege also extends a client’s self-incrimination privilege to the attorney.
Hanson
ACP and limited privilege
Hansen stated a threat against the judge, lawyer, and others in a previous case to Youtz. Youtz consulted another attorney and thought that the threat was legitimate so he told them.
Hansen was not a client of Youtz because he explicitly said that he was not taking his case on and ACP is not applicable to a client’s remarch concerning the furtherance of a crime, fraud or to a conversation contemplating a future crime.
Togstad
Togstads husband was permanently injured during a hospital stay so she went to ask an attorney if they had a case. He said probably not and that he would call if he changed his mind. Togstad relied on this advice and believed that he was her lawyer.
Legal malpractice in Togstad
1) A-C relationship
2) Defendant acted negligently or breached
3) Such acts were a proximate cause of plaintiff’s damages
4) But of D’s malpractice, plaintiff would’ve succeeded in their legal objective
