Professional Responsibility Law 115 Wed., Oct. 31

– duty of confidentiality

limitations on the use of confidences

1.8(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

1.9(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known

Duty of confidentiality concerning prospective clients

1.18 (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

self-defense exception

lawyer may reveal confidence 1.6(b)(5) 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

- do not have to wait for formal proceedings - must be an accusation about violation of the law (incl. discipl. law) - includes third party accusations against lawyer when client is innocent

problem: pre-emptive self-defense

exceptions for client crime/fraud

Distinguish cases in which attorney is obligated to speak by the prohibition on counseling or assisting crime/fraud

distinguish: preemptive self-defense

Model Code 4-101(C) A lawyer may reveal: … (3) The intention of his client to commit a crime and the information necessary to prevent the crime.

Va. Rules of Professional Conduct 1.6(c) A lawyer shall promptly reveal: (1) the intention of a client, as stated by the client, to commit a crime and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned, and, if the crime involves perjury by the client, that the attorney shall seek to withdraw as counsel

Va. R 1.6(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal: (3) such information which clearly establishes that the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation;

Old (1983) Model Rule 1.6 Confidentiality of Information (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;

O.P.M. case

Current MR 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to 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;

1.13(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

Current 1.13(c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

substantial physical harm/death

Model Code 4-101(C) A lawyer may reveal: … (3) The intention of his client to commit a crime and the information necessary to prevent the crime.

Va. Rules of Professional Conduct 1.6(c) A lawyer shall promptly reveal: (1) the intention of a client, as stated by the client, to commit a crime and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned, and, if the crime involves perjury by the client, that the attorney shall seek to withdraw as counsel

Old (1983) Model Rule 1.6 Confidentiality of Information (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;

Your client, whom you are representing in a divorce proceeding, tells you that her husband is furious at his lawyer and plans to beat him up. She requests that you keep this quiet. May you inform opposing counsel under MC, Va. Rules, or old MRs?

Spaulding v. Zimmerman the defendant’s lawyers (and perhaps the defendant), but not the plaintiff or his counsel, are aware that the plaintiff has a life threatening aneurism resulting from accident caused by defendant’s negligence. Assuming that the defendants do not want to divulge the information, may their lawyers do so anyway under MC, Va. Rules, or old MRs?

a client reveals that he has dumped toxins in a river may you tell the people who might be harmed under MC, Va. Rules, or old MRs?

MR 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm;

Rule 1.16 Declining Or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: … (3) the lawyer is discharged.

Balla v. Gambro, Inc. (Ill. 1991)

Rule 1.13 Organization As Client (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

MR 1.13(c) (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

MR 1.13(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.

Ill. R. Prof. Conduct 1.6(b) A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.

forced exceptions

Tarasoff v. Regents of the University of California (Cal. 1976)

Hawkins v. King County (Wash. App. 1979)

40 DUTY OF LOYALTY (conflicts of interest)

41 Conflicts concerning current clients

42 Rule 1.7 Conflict Of Interest: Current Clients (a) 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

43 (2) there is a 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.

44 (b) 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…and (4) each affected client gives informed consent, confirmed in writing.

45 Unconsentable conflicts: 1.7(a)(1) lawyer cannot reasonably believe that she will be able to provide competent and diligent representation to each affected client… 1.7(b)(2) the representation is…prohibited by law 1.7(b)(3) the representation involves 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

46 You represent A for the purposes of drafting his will and creating a trust for his children. B asks you to represent him in his suit against A for breach of an unrelated contract.

47 You are a part-time prosecutor in a criminal case against B involving serious harm to A as a result of B’s drunk driving. A asks you to represent her in a civil suit against B.

48 You represent an insurance company that has undertaken to defend an insured in a $100,000 slip and fall suit against the insured. The insurance company’s liability is limited to $10,000.

49 You represent A for the purposes of drafting his will and creating a trust for his children. B asks you to represent him in a slip and fall suit against C. A is a witness in the case whom you know will testify that B’s fall was the result of B’s own negligence. It is essential for you case against C that you discredit A’s testimony.

50 You represent the A Corp in a breach of contract suit against the C Corp. The B Corp (which is the A Corp’s arch-rival) approaches you and asks you to represent it in a suit against the D Corp.

51 Comment 6 to 1.7 “On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.”

52 You represent two co-defendants in an automobile collision case. Neither defendant has any damages and each defendant claims that the plaintiff was responsible, although they have no clear memory of their own or the other defendant’s involvement in the collision.

53 You are a famous civil rights lawyer who specializes in cases of police brutality. A police officer asks you to defend him in a civil rights action in which he claims to have been falsely accused of police brutality. May you undertake to represent him?

54 You represent C in a tort suit concerning a car accident involving A, B and C’s car. A and B are suing C. A few weeks into the case A decides to bring a crossclaim against B claiming that B’s negligence too caused the accident. Because so many of the same arguments that B will give against A are arguments that C will give against A, B asks you to represent him in connection with the crossclaim. He will retain his own lawyer in connection with his suit against C.

55 Comment 17 Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client's position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding.

Westinghouse Elec. Corp. v. Kerr- McGee Corp. (7 th Cir. 1978)

imputation MR 1.10

58 Positional conflicts

Lawyer represents Bank1. Lawyer also represents Consumer who is bringing a suit against Bank2, arguing that its ATM fees are illegal. Bank1 charges the same fees.

60 Comment [24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.

61 A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.

62 Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer.

Does the 7 th Circuit analyze Westinghouse as a positional conflict case (i.e. its arguments for API will materially limit its representation of Westinghouse and visa versa)?

Assume that Westinghouse has sued Getty for breach on an unrelated contracts. Would K&E have to get Getty’s consent to the conflict?

quasi-clients

how was K&E supposed to discover the conflict?

67 advance waiver of conflicts

68 Comment 22 to MR 1.7 If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation.

Fiandaca v Cunningham (1 st. Cir. 1987)

70 Hot potato rule – Under 1.7 a lawyer can sue a former client concerning issues not substantially related to the earlier representation – Rule 1.16 allows a lawyer to terminate the relationship when there is no material adverse effect on the client as a result of the termination.

71 You represent company A in a small contract dispute. B approaches you and suggest that you represent him in a mega-million dollar class action suit against A. You are sure that A will not consent to your representing B. May you terminate the relationship with A, and represent B? – Assuming no material adverse effect will result from the termination, eg because in early stages.

72 Thrust-upon conflicts – You discover late in game (and unforeseeably) that you have a conflict – no consent (by one or both) is available – you try to solve it by dropping a party