Notes

Question 1

Test for Attorney Client Relationship

Answer 1

Matters if you represented the person in the past. Factors not dispositive of relationship

• don’t have to reveal confidential/damaging information
• don’t have to receive a fee
• person who is a client doesn’t have to pay the fee
• don’t have to give actual advice
• sophisitication is irrelevant

Question 2

Prospective Clients R 1.1.18

Answer 2

Cannot take another client that is materially adverse in the same or a substantially related subject matter and if this stuff could be significantly harmful if the information could be received from the prospective client

Question 3

Beauty Contest

Answer 3

When one competes for a client. You cannot get information while treating a client and then turn around and use that information against that individual if arguing against that client later.

Question 4

Range of confidential information

Answer 4

Essentially everything learned by virtue of the relationship

Question 5

Is confidential information discoverable?

Answer 5

Yes, unless it is privileged.

Question 6

Range of privileged information

Answer 6

Determined by law. This is information that is not discoverable by a court.

Question 7

Is there a waiver of privileged information

Answer 7

No, but the privilege is lost if the same information is discussed in front of third parties

Question 8

Elements of privilege

Answer 8

• Client: inapplicable if the person isn’t a client or if you or the client discuss the information in front of third parties
• Conversation is for legal advice
• Communication has to be from the client (or client’s agent) and not an unrelated party
• Conversation has to occur in confidence outside of the range of third parties.

Question 9

Ways to tackle a privilege question

Answer 9

Always ask first if it is privileged. If it is privileged then it is confidential.

Question 10

Confidentiality 1.6

Answer 10

This describes the tension between the attorney client relationship and the larger moral duty.

Question 11

Confidentiality - exclusive rule

Answer 11

Cannot disclose information relating to a client unless

1. There is informed consent
2. There is implicit authorization to carry out the representation

Question 12

Must the lawyer reveal information under the exclusive rule

Answer 12

No, the lawyer may reveal information reasonably necessary.

- The harm must be reasonably certain to occur

Question 13

Question to ask when dealing with these questions

Answer 13

Would a reasonable person think that something is necessary

Question 14

Matters of first impression

Answer 14

Argument in the restatement

- uses a wider version of reasonable and necessary

Question 15

Fraud exception

Answer 15

if the client uses the lawyer’s services as part of a fraudulent transaction and injury then the lawyer may disclose.

Question 16

Scale applied to the fraud exception

Answer 16

In favor of not telling. Try to persuade the client to tell.

Question 17

Confidentiality of people associated with a company (different tests)

Answer 17

Control group - top echelon only
Everyone - way to broad
Upjohn test - next card
Samaritan foundation test - card after
Restatement test - card after that

Question 18

Upjohn test

Answer 18

Covered company’s information is privileged/confidential if

• employee is talking to the company’s lawyer
• on a matter that is of interest to the company
• the purpose of the interview is to give the company the best possible representation
• subject of the conversation is within the employee’s duties

Question 19

Samaritan Foundation test

Answer 19

The information is privileged if:

• the employee is talking to the company’s lawyer
• the subject of the information is within the scope of the employee’s duties
• subject is the person’s own conduct (not other’s conduct)

OR

• employee comes to the company’s attorney to talk
• the subject of the conversation is the employee’s conduct and not other’s conduct

Question 20

Restatement Test

Answer 20

All conversations with employee if the corporation’s interests are at stake
- applies to former employees

Question 21

Exceptions to Privilege or Confidentiality

Answer 21

• self defense
• refusal to pay fees
• client identity
• public policy exception
• waiver
• crime fraud exception

Question 22

Self Defense

Answer 22

A lawyer defending himself can reveal privilege to the extent necessary to defend himself.

Rule of reason - only able to release information as necessary to defend himself.

Can not be part of an assertive claim.

Question 23

Refusal to pay fees

Answer 23

Subject to the same reasonableness rule as self-defense. Allowed to disclose amount of fees. Increase of fees; fee disputes; difficult to increase fees to lawyer’s economic benefit during representation.

Question 24

Client Identity

Answer 24

allowed to disclose that you represent the client.

Question 25

Public Policy Exception

Answer 25

Foster case; disclosable because of public policy in big-deal case; unpredictable

Question 26

Waiver

Answer 26

Where client acts do not show an honoring of the privilege. Fact intensive and dangerouw

Question 27

Litigation vs. Non business contextual application to waivers

Answer 27

1. In litigation if client starts talking; everything can come out if it hints at other stuff
2. In business context, e.g. publish a book, and disclose certain information, waives only the information that was actually revealed

Question 28

Other Conflicting laws

Answer 28

When other laws require disclosure; e.g. child protection - inconcistent results

Question 29

Crime fraud exception

Answer 29

Fact-intensive, dangerous because it is based on public policy.

• Attorney client relationship doesn’t exist if the client asks to use your services directly in committing a crime/fraud.
• Not enough to tell the lawyer about the fraud, has to ask or use your services as part of it.
• Lawyer can be forced to disclose information gained from a conversation.

Question 30

Zolin Hearing

Answer 30

hearing where the other side present attorney information to ask to revoke privilege

Question 31

Is a statement of intention to commit a crime enough for the crime fraud exception?

Answer 31

No, only CF exception only applies if the client intends to use the attorney relationship

Question 32

Noisy Withdrawal

Answer 32

Falls under public policy exception. There must be a large crime or issue at stake (wrong pills for FDA test)
Lawyer announces that they take back everything said on the client’s behalf.