1. A. Privilege and Confidentiality  confidentiality: professional law, and the law of agency  the duty of the lawyer as agent (and fiduciary) not voluntarily to disclose  addressed in MRPC 1.6 (existing clients): “information relating to the representation of a client”  and in 1.18(b) (prospective clients): “information learned in the consultation”

2.  privilege: law of evidence  right(s) of a client not to disclose certain information in the face of authoritative demand  right/duty of lawyer to invoke it on C’s behalf  elements (Restatement 68)  communication  made between privileged persons (client, attorney, agents of either)  in confidence  to obtain or provide legal assistance for client

3. 1. Role of the Privilege in General (a) “Legal Services” Problem p. 227  Is the information demanded by the police from Astor confidential?  Is it privileged? Hughes, p. 227, and Dean, p. 230  Are these cases consistent with each other?  Which one is most like our problem?  If you were Astor, how should you respond to Cleveland’s request?

4. Problem p. 234  Plaintiff’s deposition of our lawyer Harris. Which of the lines of questioning can he refuse to answer?  What he observed at the factory? N. 3 p. 235  suppose the CEO had told him when he was retained that there had been some issues with defective products, and asked him to go on a tour to get acquainted with how the system works?

5. Problem p. 234 c’t’d  can he refuse to disclose what the foreman told him on the day of the tour?  how is this different from what he observed?  what problems do the facts present for the privilege claim?  who communicated?  to whom was it communicated?  did anyone other than Harris hear it?

6. Problem p. 234 c’t’d  can Harris refuse to disclose what the foreman told him later during his investigation?  Upjohn, p. 237

7. Problem p. 234 c’t’d  P subpoenas the statement made by Jones to Harris.  Must Harris deliver?  Under what conditions?  Upjohn, p. 243  Harris tells an old friend about the tour and the suit at a cocktail party. Is he subject to discipline?