PRO RES QUIZ 2 Flashcards
2-Prong Strickland Test to Evaluate Ineffective Assistance of Counsel
Prong 1: Did Counsel’s Performance fall below an “objective standard of reasonableness?” Compare attorney’s conduct to the prevailing professional norm
Prong 2: Prejudice. But for Counsel’s unprofessional errors, there’s a reasonable probability the result would have been different
Note: Requires both prongs to be satisfied for counsel to be ineffective
Confidentiality
An ethical duty lawyers owe to their clients with respect to information concerning the representation
Privilege
An evidentiary concept, which protects against compelled disclosure of certain communications
Elements of Attorney-Client Privilege
(1) Communication;
(2) Made between Attorney and Client;
(3) Made privately; and
(4) For the purpose of giving or obtaining legal advice
What Does Confidentiality Protect?
All information relating to the representation
From client, witnesses, attorney’s investigation, experts, documents, etc.
What Does Privilege Protect?
Information communicated between client and lawyer in private for the purpose of obtaining legal advice
Model Rule 1.6: Confidentiality
A lawyer shall not reveal information relating to the representation of a client unless…
(1) Informed Consent
(2) Implied Authorizatiion
(3) Paragraph (B) exceptions
Informed Consent
Explicit authorization for an attorney to communicate confidential information
Need an express agreement after the client is advised of risks and alternatives
E.g. Client may authorize attorney to release tax returns
Implied Authorization
Disclosure of confidential information to carry out purposes of the representation
E.g. A demand letter requires facts to show there’s a case, filing a complaint requires facts to support the action
Model Rule 1.6: Confidentiality; Paragraph (B) Exceptions
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) Prevent reasonably certain death or substantial bodily harm;
(2) Prevent the client from (a) committing a crime or fraud (b) that is reasonably certain to result in substantial injury to the financial interests or property of another, and (3) has used or is using lawyer’s services [to commit crime];
(3) Prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) To secure legal advice about the lawyer’s compliance with these Rules;
(5) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;
(6) To comply with other law or a court order;
(7) To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client
What is Substantial Bodily Harm?
Reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat
Note: This is a may rule. The lawyer is not required to disclose this information
Can a Court Ever Force you to Disclose Information Obtained from a Client?
A Court may order disclosure of confidential information
Privilege is a shield that protects against judicially-compelled disclosure
Crime-Fraud Exception to Privilege
The attorney-client privilege does not apply to a communication occurring when a client:
(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
(2) Regardless of the client’s purpose at that time of consultation, uses the lawyer’s advice or other services to engage in or assist a crime or fraud
Who Asserts Privilege?
The Client is the holder of the privilege, and can decide whether to assert or waive
Privilege isn’t automatic; it must be timely asserted
Who Asserts Privilege for Entities or Corporate Clients?
A lawyer will consult with an entity’s CEO or president to determine whether the entity wishes to assert or waive privilege
Who is a Privileged Party?
When a third party is present during an attorney-client conversation, privilege extends to the lawyer’s representative if:
(1) The attorney is directing their representative’s assistance; and
(2) The attorney is providing legal advice
Communications with Employees of a Corporation
In the corporate context, the attorney-client privilege applies to not only those high-level employees who have the authority to act on the legal advice of the attorney, but also to any of those employees who provide information to the attorney so that he may give such legal advice
Waiver of Attorney-Client Privilege
(1) Informed Consent
(2) Voluntarily disclosing confidential communications to a third party (friend, journalist, etc.)
How Do You Protect Privilege in Court?
Timely object to another party’s use of privileged information
Object to discovery requests and expressly assert the privilege to prevent disclosure
Privileg: Inadvertent Waiver
When made in a federal proceeding, or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) The disclosure is inadvertent;
(2) The holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) The holder promptly took reasonable steps to rectify the error
What To Do If You Receive Privileged Information?
A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender
Exceptions to the Attorney-Client Privilege
(1) Joint Clients
(2) Self Defense
(3) Crime-Fraud Exception
2-Part Crime-Fraud Exception Test to Determine Whether It Applies
(1) Client was engaged in/planning a crime or fraud when sought advice of counsel; and
(2) Specific attorney-client communications are sufficiently related to and made in furtherance of illegality; this determination must be made by in camera [private] inspection of communications
Work-Product Immunity
Prevents disclosure of an attorney’s mental impressions, conclusions, opinions, or legal theories about a case as he/she is preparing for litigation
Covers an attorney’s preparation, collection, and assembly of tangible and intangible evidence
