PRO RES QUIZ 2

Question 1

2-Prong Strickland Test to Evaluate Ineffective Assistance of Counsel

Answer 1

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

Question 2

Confidentiality

Answer 2

An ethical duty lawyers owe to their clients with respect to information concerning the representation

Question 3

Privilege

Answer 3

An evidentiary concept, which protects against compelled disclosure of certain communications

Question 4

Elements of Attorney-Client Privilege

Answer 4

(1) Communication;

(2) Made between Attorney and Client;

(3) Made privately; and

(4) For the purpose of giving or obtaining legal advice

Question 5

What Does Confidentiality Protect?

Answer 5

All information relating to the representation

From client, witnesses, attorney’s investigation, experts, documents, etc.

Question 6

What Does Privilege Protect?

Answer 6

Information communicated between client and lawyer in private for the purpose of obtaining legal advice

Question 7

Model Rule 1.6: Confidentiality

Answer 7

A lawyer shall not reveal information relating to the representation of a client unless…

(1) Informed Consent

(2) Implied Authorizatiion

(3) Paragraph (B) exceptions

Question 8

Informed Consent

Answer 8

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

Question 9

Implied Authorization

Answer 9

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

Question 10

Model Rule 1.6: Confidentiality; Paragraph (B) Exceptions

Answer 10

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

Question 11

What is Substantial Bodily Harm?

Answer 11

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

Question 12

Can a Court Ever Force you to Disclose Information Obtained from a Client?

Answer 12

A Court may order disclosure of confidential information

Privilege is a shield that protects against judicially-compelled disclosure

Question 13

Crime-Fraud Exception to Privilege

Answer 13

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

Question 14

Who Asserts Privilege?

Answer 14

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

Question 15

Who Asserts Privilege for Entities or Corporate Clients?

Answer 15

A lawyer will consult with an entity’s CEO or president to determine whether the entity wishes to assert or waive privilege

Question 16

Who is a Privileged Party?

Answer 16

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

Question 17

Communications with Employees of a Corporation

Answer 17

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

Question 18

Waiver of Attorney-Client Privilege

Answer 18

(1) Informed Consent

(2) Voluntarily disclosing confidential communications to a third party (friend, journalist, etc.)

Question 19

How Do You Protect Privilege in Court?

Answer 19

Timely object to another party’s use of privileged information

Object to discovery requests and expressly assert the privilege to prevent disclosure

Question 20

Privileg: Inadvertent Waiver

Answer 20

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

Question 21

What To Do If You Receive Privileged Information?

Answer 21

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

Question 22

Exceptions to the Attorney-Client Privilege

Answer 22

(1) Joint Clients

(2) Self Defense

(3) Crime-Fraud Exception

Question 23

2-Part Crime-Fraud Exception Test to Determine Whether It Applies

Answer 23

(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

Question 24

Work-Product Immunity

Answer 24

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

Question 25

2 Types of Work-Product Production

Answer 25

(1) Ordinary Work-Product: privileged unless substantial need shown

E.g. Witness statements, documents, photographs, notes

(2) Opinion Work-Product: privileged absent extraordinary circumstances

E.g. Strategy memo, tactical decision-making plan

Question 26

Failure to Identify Conflict of Interest: Consequences

Answer 26

(1) Disqualification from representing a client

(2) Fee disgorgement

(3) Professional discipline

(4) Civil liability (malpractice) for failing to avoid the conflict

Question 27

Model Rule 1.7: Conflict of Interest; Current Clients

Answer 27

Except as provided in paragraph (B), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) The representation of one client will be directly adverse to another client; or

(2) There is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer

Question 28

Model Rule 1.7: Conflict of Interest; Current Clients; Consentable under Paragraph (B)

Answer 28

Notwithstanding the existence of a concurrent conflict of interest under paragraph (A), a lawyer may represent a client if:

(1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) The representation is not prohibited by the law;

(3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) Each affected client gives informed consent, confirmed in writing

Question 29

How Do You Resolve Conflict of Interest Issues?

Answer 29

(1) Clearly identify the client or clients;

(2) Determine whether a conflict of interest exists;

(3) Decide whether the representation may be undertaken despite the existence of a conflict, e.g., whether the conflict is consentable; and

(4) If so, consult with the clients affected under paragraph (A) and obtain their informed consent, confirmed in writing

Question 30

2-Step Conflict Analysis

Answer 30

Step 1: Is there a concurrent conflict under paragraph 1.7 (A)?

— Positions are directly adverse; or

— There’s a significant risk that attorney’s representation will be materially limited

Step 2: Is the conflict “consentable” under paragraph 1.7 (B)? [informed consent, confirmed with writing]

— Reasonable belief of competent and diligent representation

— Not prohibited by the law

— Not adverse in the same litigation

Question 31

What Constitutes Informed Consent?

Answer 31

Denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the natural risks of and reasonably available alternatives to the proposed course of conduct

Question 32

Model Rule 1.8(A): Business Venture with Client

Answer 32

For an attorney to enter into a business venture with a client, the attorney must:

(1) Record in writing the nature of the transaction, using easy-to-understand language, and the terms must be “fair and reasonable to the client”

(2) Attorney advises client to get independent counsel to review the terms

(3) Attorney obtains informed consent in writing