Week 5
Professor Lopez
Professional
Responsibility
Spaulding v.
Zimmerman
The Zimmerman
Appellate Lawyer’s
View
“After 20 years of practice, I would like
to think that I would have disclosed
the aneurysm on the aorta as an act of
humanity and without regard to the
legalities involved, just as surely as I
would now. You might suggest to your
students in the course on professional
responsibility that a pretty good rule
for them to practice respecting
professional conduct is . . .
Problem 4-5: Rat Poison
MRPC 1.6
Problem 4-5: Rat Poison
Your client, Harry Norton, an exterminator, has been charged with involuntary
manslaughter. Norton improperly used industrial rat poison in a home. His
customer’s four-year-old boy ate some of the rat poison and died.
He has used the poison in other homes. Norton says he has records of the locations
but has dragged his feet on sharing them with you, and you worry that he may
destroy these records. The police have not searched his house or made any other
efforts to get Norton’s records. He won’t let you talk to the prosecutor.
What should you do?
Rule 1.6(b)(1)
A lawyer may reveal information relating to
representation of a client to the extent the
lawyer reasonably believes necessary to
prevent reasonably certain death or substantial
bodily harm . . .
An MPRE-type version of the problem
You learn from your exterminator client Norton that he has put industrial
poison in homes other than the one where his customer’s child died. It is
reasonably certain that other children will die unless those other families are
notified, but Norton directs you not to tell anyone. Will you be subject to
discipline if you do nothing to reveal the danger?
(A) Yes, because the rules require you reveal to prevent reasonably certain
death.
(B) Yes, because you should reveal because it is the right thing to do
regardless of the rules.
(C) No, because the rules do not permit you to reveal information in this
situation.
(D) No, because the rules to not require that you reveal.
Problem 4-6: Reese’s Leases
MRPC 1.2, 1.6, 1.16, 4.1
Problem 4-6: Reese’s Leases
You are in private practice. Your biggest client, Executive Leasing, accounts for 60
percent of your firm’s revenue. Without Executive, your firm would fail.
You created the lease form, and you have written legal documents verifying the
company’s ownership of the cars.
Recently you discovered that your client has been altering existing leases and
drawing up phony leases to make it appear that the volume of their business is larger
than it really is and has been getting big bank loans based on the phony leases.
You confronted your client, who said he would stop fiddling around with the
paperwork.
What are your obligations under 1.6(b)(2) and (3)?
Rule 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
Florida comparison of the exception to confidentiality
for financial crimes
Model Rule
• “(b) A lawyer may reveal information . . .
• (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): same except past crime or fraud and
revelation can prevent, rectify, mitigate
substantial financial injury
Florida
• “A lawyer must reveal confidential
information to the extent the
lawyer reasonably believes
necessary: . . . .
• (1) to prevent a client from
committing a crime”
• Not for fraud and not retroactive
Applies to lawyers who work with publicly traded
companies (within jurisdiction of Securities Exchange
Commission)
Lawyers must “report up” a “material violation” to
Sarbanes Oxley
• CLO/CEO
• If no appropriate response, Board of Directors
Lawyer’s may “report out” to SEC “material violation
that is likely to cause substantial injury to the financial
interest or property”
NOT required for lawyer’s services to have been used
to trigger report
Reese’s Leases, Scene 2
You initially decided not to disclose or withdraw from representation of your client,
but you warned them that further fraud might compel you to withdraw and reveal
the fraud. Then you kept discovering more evidence that they were still writing
phony leases.
You decided to withdraw from representing Executive Leasing.
Reese says:
“You can quit on us.” We’ll just hire the law firm of Kanner, Peltzman as our new
lawyers. I know you are good friends with the lawyers there, but you’d better not
say anything to them, or to the bank. That would violate your duty to protect the
confidences that we have shared with you.”
Rule 1.2(d):
A lawyer shall not counsel a client to engage, or assist a client, in conduct
that the lawyer knows is criminal or fraudulent, …
Rule 1.16(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:
(1) the representation will result in violation of the rules of professional
conduct or other law; . . .
Assisting Client Crimes and Frauds
Rule 1.2(d): “A lawyer shall
not counsel a client to
engage, or assist a client, in
conduct the lawyer knows is
criminal or fraudulent.”
• Drafting/delivering
documents the lawyer
knows are false [10]
• Suggesting how
wrongdoing might be
concealed [10]
• Offer false testimony
• Omissions/half truths can
be fraud
Comment 10: A noisy
withdrawal may be
necessary—note that it does
not permit revealing 1.6
protected information
Fraud: 1.0, Comment [5]:
fraud under the substantive
law AND has a purpose to
deceive.
• Not negligence
• No harm required to be
ethical violation
MRPC 4.1:
Disclosure to avoid assisting client crimes and frauds
In the course of representing a
client, a lawyer shall not knowingly .
. . fail to disclose a material fact
when disclosure is necessary to
avoid assisting a criminal or
fraudulent act, unless disclosure is
prohibited by Rule 1.6.
Comment 3: “ordinarily, a lawyer
can avoid assisting a client’s crime
or fraud by withdrawing from the
representation.”
Problem 4-7: An Investment Project
MRPC 1.6, 1.8
Problem 4-7: An Investment Project
You have learned in confidence from a client that developers are planning
to build a shopping center in Lakeshore, which will increase the value of
land. A parcel of land there is available, but your client has decided not to
buy it.
Are you permitted to buy the land under Rule 1.8(b)?
Chapter 5:
The Attorney-Client Privilege
and the Work Product Doctrine
(and a bit of review of, guess what, … confidentiality)
Confidentiality & Privilege
Protecting client confidences is an ethical duty.
Attorney-client privilege is a rule of evidence
creating a right: neither lawyer nor client may
be compelled to disclose certain information.
Privilege covers only
1. Communication between lawyer and client
2. Made in confidence
3. For the purpose of obtaining or providing
legal advice or assistance for the client
AttorneyClient Privilege
Confidential Information
Work Product Doctrine
Work
Product
Doctrine
AttorneyClient
Privilege
Confidential Information
Waiver & Exceptions
Client
- inadvertent/unintentional
Attorney
- client authorized (express,
implied, apparent)
- inadvertent
• Sixth Amendment
• MRPC 1.6(b)
• Crime-fraud exception
Problem 5-1: Murder for Hire
Your client, Eddie Tillman, is charged with murdering his father. His
friend Sikorski is also charged. You interviewed Eddie in jail, but other
prisoners might have been able to overhear your conversation over the
partitioned cubicles.
Eddie told you that he was planning to admit guilt.
The next day he changed his mind.
Cabrales, who was in the next cubicle, overheard the conversation and
is going to tell Sikorski. If the jury learns what Eddie told you in jail,
they are likely to convict him of murder and sentence him to death.
Problem 5-2: The Payoff
Your friend, Attorney Alan Clark, acted as a conduit for his client, Governor Eldon
Malter, while Malter was running for election, so that Malter could pay off
Natalie Cullen in exchange for her silence about Malter’s affair with her.
To conceal the payoff, Malter directed Clark not to reveal it as a contribution by
the governor to his own campaign, even though the purpose was to help his
election prospects. Malter knew that the failure to report was a crime. Clark
assured Malter that their conversation was privileged, and he complied.
Celia Nusman, an assistant prosecutor, wants Clark to reveal all of his
communications with the governor about the transaction and has threatened
Clark with prosecution and prison unless he cooperates immediately.
Problem 5-3: A Secret Confession
Your client, Chester, has confessed to you that
he alone murdered the Sosas – but Parnett, a
fellow member of a marijuana distribution ring,
is about to be sentenced to life in prison for the
crime as a result of a plea bargain in a separate
prosecution. Chester does not want you to
reveal his confession, even though it might clear
Parnett.
What do you do?
A Secret Confession, continued
You decide to reveal Chester’s confession to Parnett’s lawyer. He asks for a
new trial for Parnett and subpoenas you to testify at the hearing on the
motion for a new trial. During the hearing, you are about to tell the judge
about Chester’s confession.
The judge says, “Stop right there. If you testify, I will be compelled to
report you to the state bar for violating your former client’s attorneyclient privilege, which outlasts his death.”
Is the judge correct in thinking that the bar would have cause for
discipline?
Attorney-Client Privilege for
Corporations
Corporate privilege where (1) communication made for purpose of
securing legal advice; (2) employee making communication did so at
direction of corporate supervisor; (3) superior made request to secure
legal advice; (4) subject matter within scope of employee’s corporate
duties; (5) communication is not disseminated
Problem 5-4: Worldwide Bribery
You are general counsel of Horizon – Valerie Patel is President.
You conducted an internal investigation of international bribery by your company.
You had company lawyers interview officers and employees, several of whom
revealed that bribes had been made to foreign governments in violation of US law.
They provided records.
With Patel’s consent, you ordered an end to the bribery, and to avoid prosecution,
you advised the US Attorney in general terms that bribery occurred and that the
corporation was willing to pay a fine.
But now the U.S. attorney threatens a grand jury investigation unless you turn over
the records of the bribery and your interview summaries.
Are his attorneys subject to
discipline?
What about malpractice?
Alex jones