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Ch. 4) 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”

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Ch. 4) confidentiality

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  1. 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” Privilege and Confidentiality Ch. 4) confidentiality

  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?

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