Duty of Confidentiality

1. Duty of Confidentiality • Evidence Privilege • Ethics Confidentiality • Restatement 68 (Privilege) • Communication • Between Privileged Persons • In Confidence • For Obtaining or Providing Legal Assistance for the Client Privilege Belongs to the Client Confidential Privileged

2. Work-Product Privilege • Material prepared • By a party or agent (attorney) • For, or in anticipation of, litigation • Two categories • “Opinion” work product • Reflects mental process and opinions • Generally no discovery allowed • “Ordinary” work product • Everything else • Limited protection – Is there a substantial need for the info, and is this virtually the only way to get it?

3. Upjohn Co. v. United States • Upjohn GC was told that one of foreign subsidiaries made payments to government officials to get government business. • Began internal investigation. • Questionnaire to foreign managers to get information. • IRS sought questionnaires and memoranda and notes of interviews. • Trial Court ordered production. • Court of Appeals affirmed. • Applied Control Group test to A/C privilege. • Supreme Court reversed.

4. Privilege • Reasons for attorney-client privilege: • Encourage “full and frank communication.” • Better representation – better administration of justice • Information to attorney, advice to client. • What is purpose of work-product privilege? • Don’t perform job on “wits borrowed from adversary.” • Protect mental processes of attorney – greater protection. • Upjohn: • If reveals communication – attorney-client • If not, opinion work-product • Reverse and remand on work-product issue – need stronger showing to get (unlikely??).

5. Attorney-client privilege • How does an entity communicate? How do you talk to a corporation??? • Need a “surrogate.” Who is included? Possibilities: • Control group test – • only those in upper levels of management – act for corp. • All employees • Upjohn – communications • between attorney and agents/employees • about matters within corporate duties • at direction of corporate superiors • to secure legal advice.

6. Upjohn test • “Zone of silence” concern with control group test. • If too many employees included, harder to get information. • Supreme Court says it is not a problem. Can still get the information, just not the communications. • In no worse position than would have been. • Not entitled to it just because it’s easier. • In fact, some limitations on this will be discussed later. But the information is available. • But no need to extend to all employees – still must fit definition of and purpose of privilege.

7. Privilege • All privileges limit information. • Is there a benefit that outweighs the limitation? • Especially clear in cases in which the information would not have existed without the privilege. • Note: Privilege is an evidentiary concept. • Upjohn deals with privilege in federal cases. States may have different rules. • Restatement (Organizational Clients) – • Communication concerns a legal matter of interest to entity • Agents of the organization who need to know in order to act for the organization and who facilitate communication.

8. Texas Rule 503 • Privilege includes communications with a representative of a client. • Representative of client is • One with authority to obtain or act on legal advice for client. • One who “makes or receives a confidential communication while acting in the scope of employment for the client” for purpose of “effectuating legal representation.”

9. Stewart v. Falley’s, Inc. • Employment discrimination case – motion to compel production of memo created by D’s employee. • Memo prepared by Human Resources Director • Report of sexual harassment. • Motion denied. • Work product privilege • But human resources director wasn’t a lawyer, was she?

10. Work-product privilege • Federal rule • Documents prepared in anticipation of litigation or for trial by or for another party or representative. • Discoverable only if show substantial need and unable to get equivalent without undue hardship. • Party opposing motion to compel must show (from case) • Document or tangible thing (not underlying info) • Prepared in anticipation of litigation (or during litigation) • Prepared by or for party or party’s attorney – Does not have to be at direction of attorney • Now burden to movant to show need and inability to get otherwise without undue hardship. • Did not attempt to show here.

11. Work-product privilege • Not privileged unless prepared in anticipation of litigation (or for litigation) – not just procured. • Limited selection and compilation exception – if gives away mental processes. • Routine work does not fit – must be in anticipation of litigation. • Case does not have to be filed. • May be discoverable if given to expert witness. • Need/hardship exception – • Burden on one claiming exception • Ex. – reports, videos made at time of accident • Generally does not apply to opinion work-product – not really evidence. May apply if is issue in litigation.

12. Elements of Attorney-Client Privilege • Communication • Between privileged persons • In confidence • To get or provide legal assistance

13. Elements of Attorney-Client Privilege – Communication Assume client is involved in a hit and run accident, and consults his lawyer about what he should do: • Can the client be compelled to relate what he told his lawyer? • Can the lawyer be compelled to reveal what the client told him? • Does the attorney-client privilege protect client from answering questions about the underlying facts? • If the client writes out an account of the event for the attorney, is the writing privileged? • What about the client’s written notes about the where he would be traveling? • What if attorney asks the client if he was hurt, and the client rolls up his sleeve to reveal a bruise? Is that privileged? • What if the attorney just sees the bruise?

14. Identity, retainer • Identity of client is generally not privileged – not a communication. • Same RE fact of consultation, retainer, fee agreement. • Exception if identity would reveal privileged communication – “last link” • Baird v. Koerner • Attorney sent check to IRS for unpaid taxes. • Identity of clients was protected – would indicate who had not paid, and motives for consulting an attorney.

15. Between privileged persons • Attorney and client are privileged persons. • Prospective clients are included. • “Attorney” is included, even if not really attorney, as long as client thinks he is. • Satterwhite and client, for example. • Some corporate employees/agents. • Agents required to facilitate the communication. • Translator, stenographer, accountant?, doctor? • Agents of attorney required to facilitate the representation – • Associate, paralegal, secretary.

16. Stroh v. General Motors Corp. • GMC sought to get information from Stella Maychick about conversations with her attorney. • Said presence of her daughter destroyed privilege. • Did it? • Does presence of non-privileged person destroy privilege? • Why did the court decide as it did?

17. Privileged persons – attorney • That mean’s client’s attorney (one consulting for advice) • In In re Grand Jury Subpoena Duces Tecum • Hillary Clinton met with her attorney with White House counsel present. • Presence of White House counsel destroyed privilege. • But okay if co-clients and attorneys are present – same for common interest litigation, joint defense agreements. • NOTE: Privilege protected as to outside world. NOT as to other parties.

18. In confidence • If others there, not in confidence. • If intend to tell others, not in confidence. • If tell attorney to tell others, not in confidence. • If do not reasonably try to protect confidentiality, not in confidence. • Elevator • Restaurant • Be careful

19. For purpose of obtaining legal advice • Not if for other kinds of advice • Investment advice • Friendly advice • Careful RE in-house counsel • Also attorneys that have special expertise • Crime-fraud exception • No privilege if seeking advice in commission of crime or fraud – future crime or fraud. • Not really “legal” advice • Focus on client’s motives • Okay to seek advice on compliance with the law.

20. Texas Rule 503(d)(1) • No privilege if services sought to enable commission of crime or fraud. • Apparently does not include threats in presence (discuss later). • Focus on definition of privilege – is client seeking legal advice?

21. In Re: Investigating Grand Jury (Stretton) • Stretton held in contempt for refusing to testify regarding conversation with former client after representation over. • Q: Does attorney-client privilege protect conversation: • Does client have reasonable belief that conversation is confidential?

22. Swidler & Berlin v. United States • Independent counsel seeking notes of meeting between Vince Foster and his attorney. • Notes sought after Foster’s death. • Question: Does attorney-client privilege apply if the client is dead? • If so, should there be an exception if no other way to get the information? • To prevent loss of information? • Should there be an exception for criminal cases? • Why does the Court decide as it does? • Should there be any exceptions? • Note: Testamentary exception

23. SEC v. Cassano • P sought order • Requiring defense attorney to return staff memo inadvertently produced during discovery and • Enjoining further disclosure. • Long memo prepared by staff to present to SEC • Discussed evidence, legal analysis, strengths and weaknesses of case. • Not stamped “privileged.” • Included with documents made available in discovery. • Defense counsel had access to memo • Read, circulated, took notes, copied. • P learned about it 12 days later. Filed application.

24. Inadvertent production in Cassano • Waives privilege if careless; if apparent unconcern for protection of privilege. Consider: • Reasonableness of precautions • Time taken to rectify error • Scope of discovery – extent of disclosure, and • Fairness • How do factors work in this case? • Has privilege been waived?

25. Waiver of privilege • Privilege is waived if not asserted – • Prospective • Information voluntarily given • Fail to preserve confidentiality • Client can waive – his privilege. • Client representative? • Attorney can waive • Client’s privilege, but attorney is agent. • Can waive by failing to protect. • That’s what happened in Cassano. • May result in liability, but still be waiver.

26. Inadvertent waiver • 3 general approaches: • “Strict liability” approach – if reveal information, cannot claim privilege. • Rarely find waiver – require intent, deliberate. • Majority – Balancing approach – “totality of the circumstances.” • Important to be careful – attorney needs to be “hands on” – see n. 2. • What are the obligations of the “receiving attorney” • Some (new fed rule) – obligation to return • What are the relevant considerations? • Court could prevent use or disqualify attorney.

27. In re Meador • Patricia Peterson worked at CLN – exec ass’t to pres. Nichols • Dana Meador sued CLN and Nichols – several C/As, including claim that former CLN GM, Tom Dowdle, sexually harassed her. • Peterson made similar claim. • CLN also had claim v. Dowdle – settled. • Peterson copied settlement letter and other Meador documents. • She quit her job and took documents with her. • Peterson hired Meador’s attorney to represent her in suit v. CLN. • Peterson gave atty (Masterson) a copy of the settlement letter. • CLN subpoenaed all copied documents. Said privileged. • Masterson made copies of all. Refused to return. • CLN moved to disqualify Masterson.

28. Meador Motion to disqualify • T Ct ordered return of documents – • Ordered attorney not to use them. • Refused to disqualify Masterson. • Writ of mandamus: • Ct. App. granted, citing ABA opinion – • Masterson actions below acceptable standard – disqualify. • Writ of mandamus: • S. Ct. found that T Ct did not abuse its discretion in refusing to disqualify. • Conditionally grant writ.

29. Reasoning in motion to disqualify: • Abuse of discretion standard. • Disciplinary Rules do not control outcome. • Guidelines only. • Look for prejudice to party seeking disqualification. • Lack of rule violation does not defeat motion. • May disqualify where have privileged information even if not involved in getting it. • Must protect information. • But no bright line rule. • Consider all facts and circumstances to do justice.

30. What Meador does not hold: • Standards do not apply when inadvertently produce in discovery • There, lawyer has no duty to notify or voluntarily return (dictum) • Burden on producing party to establish that involuntary (dictum). • Also, no opinion on standard if attorney directly involved in wrongfully procuring documents.

31. Meador factors: • 1) Whether attorney knew (s/h/k) material privileged; • 2) Promptness in notifying other side; • 3) Extent reviews and digests information; • 4) Significance of information (potential prejudice, and ability to mitigate); • 5) Extent movant (CLN) at fault; • 6) Extent of prejudice to nonmovant (Meador) from disqualification of attorney.

32. Application of standards • In favor of disqualification: • Should have known privileged. • Did not then notify CLN. • Masterson thoroughly reviewed materials. • CLN was not at fault. • Factors against disqualification: • Information will cause no significant prejudice. (None shown.) • Serious hardship to Meador if attorney disqualified. • Contingent fee agreement tied to counterclaims. • Disqualification would be strategic advantage to CLN. • No abuse of discretion.

33. Other waiver issues • Partial disclosure – • Put part of communication into evidence – • May waive privilege as to rest of communication on that subject. • Fairness analysis – may extend beyond courtroom (discovery). • Disclosure to experts • Giving privileged information to expert may waive privilege. • Expert must include everything on which base opinion. • Putting-in-Issue • Say acted on advice of counsel • Say attorney work negligent/wrongful – ineffective assistance, malpractice, breach of fiduciary duty

34. Ethical Duty of Confidentiality • Rule 1.6 -- Attorney shall not reveal information related to the representation unless • The client gives informed consent • The disclosure is impliedly authorized or • Permitted by next section • Rationale • Similar to privilege • Agency relationship

35. Informed consent • 1.0(e) • Agreement after • Adequate information and explanation from attorney • About material risks and reasonably available alternatives • Consent is stricter standard than waiver. • Waiver of privilege does not indicate consent to reveal confidential information.

36. Confidentiality and privilege • Client can override implied authorization. • Privilege is evidentiary – • Confidentiality includes all settings. • Privilege relates to communications – • Confidentiality relates to the information itself. • Privilege relates to attorney and client – • Confidentiality applies to all sources of information. • Confidentiality requires consent for revelation – • Privilege only requires waiver (can be inadvertent). • Confidentiality can conflict with other obligations – • Rules generally provide answer (this rule or other) • Confidentiality usually trumps, but not always.

37. May reveal to extent reasonably believe necessary: • To prevent reasonably certain death or substantial bodily harm • To preventclient from committing crime or fraud that is reasonably certain to result in substantial financial injury in which the client has used/is using lawyer’s services. • To prevent, mitigate or rectify substantial financial injury resulting or reasonably certain to result from the client’s commission of a crime or fraud in which the client has used the lawyer’s services. • To secure legal advice about compliance with the Rules. • To establish a claim or defense in controversy with client, in a criminal or civil case, or to respond to allegations concerning the lawyer’s representation. • To comply with other law or a court order.

38. Texas Rule 1.05 • Form is different – more detailed. • Confidential information includes • Privileged information • Unprivileged information . . . • All information related to the client, provided by the client, acquired by the attorney during the course of or by reason of the representation.

39. Spaulding v. Zimmerman • Motion to set aside $6500 settlement agreement concerning automobile accident • P Spaulding – Passenger in auto • D Zimmerman – Driver of auto • Ds Ledermans – Other auto in accident. • Order setting settlement aside. • Upheld on appeal. • What was the basis for setting aside?

40. Considerations • Minority (20 at time) • Spaulding did not have all the information. • Case raises important questions – • What do the Rules allow? • What should an attorney do when the Rules fail? • Why didn’t the attorneys tell Spaulding about the aneurysm? • Spaulding was decided under earlier rules. • What would effect of current rules be?

41. Death/bodily harm exception • May reveal • To prevent reasonably certain death or substantial bodily harm • Old rule – caused by client crime – so couldn’t reveal • Note: Texas rule 1.05 • Shall reveal to extent reasonably necessary • To prevent client from committing criminal/fraudulent act (likely) • Likely to result in death/substantial bodily injury • What if cannot reveal under rule? • What could attorney have done here? Why didn’t he? • Was the client well-served? • Should the rule be mandatory? Why isn’t it?

42. Other considerations • Noisy withdrawal option. • Mistake/misrepresentation issues • Fraud on court. • Settlement agreement. • Be careful about being too clever. • Here, no benefit – lost lots of time and money. • What’s the down side of revelation? • Pollution example • If couldn’t vacate agreement – sue attorney. • Note: now some revelation for financial harm allowed – if attorney services involved – not if not • Texas: May reveal if necessary to prevent client crime or fraud.

43. Purcell v. District Attorney • Client told attorney Purcell that he was going to burn his apartment building. • Purcell told police. • Police uncovered evidence. • Client arrested and indicted. • Purcell subpoenaed to testify. • Motion to quash granted. Mistrial. New trial. • Court ordered him to testify. • Purcell sought protection under attorney-client privilege.

44. Attorney testimony • Was attorney required to testify? • Case remanded to determine if must testify. • Must determine if attorney-client privilege protects testimony. • Determine if crime-fraud exception applies. • Was client seeking advice about how to commit crime? • Is statement that will commit crime protected if not within crime/fraud exception? • What policies might be involved? • Did attorney violate confidentiality by revealing information? • Privilege and confidentiality are different concepts.

45. Henderson v. State Texas Crim. App. 1997 • Babysitter charged with murder of infant. • Drew map of location of body for her attorney. • Motion to compel production of map granted. • Body located. Defendant confessed. • Defendant later sought to suppress confession. • Crime/fraud exception did not apply. • Not seeking advice to advance criminal purpose. • No specific exception to privilege. • Must confession be thrown out since resulted from privileged communication?

46. Admissibility of confession • Revelation of map likely covered by exception to confidentiality. • Unknown if baby alive. Need map to prevent death or substantial bodily harm. • Privilege must yield to public policy in extreme circumstances. • But no more than necessary to protect policy. • If legitimate disclosure, fruits of disclosure admissible. • Map itself not admitted into evidence. • Evidence obtained admissible.

47. Privilege and Confidentiality • Purcell was cited in Henderson. • Cases seem to carve out small area where disclosure is permissible, but privilege is not destroyed by revelation. • Crime/fraud narrower than ethical exception. • Neither really address question whether revelation is outside of the definition of privilege • Possibility is mentioned in Henderson. • Both discuss policy benefits of communication/dissuasion. • Note: Texas Rule 503(b)(2) • Special rule of privilege in criminal cases: • Client can prevent disclosure of any other fact learned by attorney due to attorney-client relationship.

48. Privilege and Confidentiality • Different tests with different exceptions. • Waiver of privilege does not destroy confidentiality. • And exception to confidentiality may not destroy privilege. • Crime-fraud exception is based on idea that cannot get aid of attorney to commit crime or fraud. • Exception to confidentiality is based on need to protect public. • When rules do not require disclosure for protection of others, is there any common law duty? • Is there a common law duty if rules do require disclosure?

49. Note 4 – Hawkins v. King County • Attorney Sanders representing Hawkins on marijuana charge. • Was told that Hawkins was mentally ill. Danger to self and others. • Sanders did not reveal the information. • Hawkins was released. • Attacked mother. • Attempted suicide. Both legs amputated. • Hawkins and mother sued Sanders for failing to disclose the information. • Court said Sanders had no duty to disclose info.

50. Duty to disclose information • Court distinguished Tarasoff (psychologist case – specific threat made) on 3 grounds: • Mom already knew of the risk. • Sanders did not know Hawkins would hurt anyone. • Sanders did not get the information from Hawkins himself. • Generally lawyers do not have a duty to protect third parties from harm. • Note – attorneys are not trained to assess these risks. • Could this be one reason for making rule discretionary? • But note that rules do not supply basis for tort liability.