A(2) Direct Evidence in Lawyer’s Possession Problem pp  What about her decision to go to the scene – any argument for not doing that?  Victim’s family’s public plea for help – can Barton respond?  could she do so without disclosing information protected by MRPC 1.6?  does any of the exceptions in 1.6 apply?  assume her state has the same “obstruction of justice” statute as the NY law set forth n. 2 p. 251; would her failure to disclose violate that law?

Problem pp c’t’d  Police come to Barton with questions. What can she tell them?  Does MRPC 1.6 control here?  Is the information she has privileged?  what Pollin told her?  what she saw in the woods?  Can she refuse to disclose that Pollin has hired her as his attorney?

Problem pp c’t’d  What should Barton do with the canvas bag that Pollin left with her?  are it and its contents privileged, such that if the police were to subpoena them they would not have to be produced?  is she under a duty to turn them over to the authorities in any event?  if so, can she do that without revealing privileged information? If she can’t, what option is there for protecting the client?

Problem pp c’t’d  What can Barton do with the keys?  are they privileged?  was it proper to take possession of the keys in the first place?  can she return them to the scene and remain silent?  Stenhach suggests it may be possible  n. 3 p. 259: Restatement doesn’t contemplate that option – why not?

Problem pp c’t’d  What should Barton do with the photographs?  are they privileged?  are they protected work product?  direct evidence of a crime?  the equivalent of the lawyer’s mental impressions?  can the prosecution show necessity?

B. Protecting Third Persons from Harm by the Client  Problem pp : client who doesn’t like lawyer’s advice and threatens to take action on his own against neighbor  may lawyer now warn neighbor of client’s threats?  what would he be warning the neighbor of?  arson?  fraud?  compare MRPC 1.6(b) before and after 2003 Amendments! (p.20 in Supplement)

Problem pp c’t’d  Lawyer fails to warn, the fraud fails and the client burns the neighbor’s house down  Is lawyer subject to discipline? Cf. Gonella, p. 267  Is lawyer liable to neighbor for civil damages? Hawkins, p. 264  Would it change your answer, if the neighbor’s child is severely burned in the fire?

Problem pp  Law firm drafts car leases for lessor client, and car purchases are secured by a lien on the rental payments. Actual leases are fraudulent, firm finds out, Client stops but refuses to rectify.  What are firm’s obligations to the car manufacturers?  Duty not to assist client’s fraud, MRPC 1.2? Mandatory withdrawal 1.16(a)(1)?  permission to disclose to rectify, 1.6(b)(3)?  Duty to report to Board of Directors under Sarbanes-Oxley?