DUTIES TO CLIENT
Attorney Must place the client’s interests above their own for representation and must treat the client fairly.
Duty of Loyalty
Attorney must pursue clients objectives unfettered by conflicting responsibilities or interests
Duty of Diligence
Attorney must pursue clients interests without undue delay
Duty of Competence
Attorney must give client competent representation
legal knowledge, skill thoroughness and preparation
Duty of Confidentiality from the 6th Amendment Right to Effective Counsel
Duty of Confidentiality versus Attorney-Client Privilege
The Attorney Client privilege is a shield in evidence which protects all documents created ...view middle of the document...
IT ONLY APPLIES TO COMMUNICATIONS...NOT facts
Duty of Confidentiality is MUCH BROADER (covers 3rd party communications)
Duty of Confidentiality is WEAKER (can be broken by necessity...if the other side shows “substantial need”
EXCEPTIONS To Duty of Confidentiality
Attorney must disclose in order to:
prevent reasonably certain death or bodily harm
to prevent fraud
to prevent reasonably certain harm financially or to property
to get legal advice about the matter
self-defense of the lawyer (when client comes after them)
to comply with law or court-order
CALIFORNIA IS MUCH MORE NARROW FOR EXCEPTION TO CONFIDENTIALITY
CALIFORNIA RULE - Must be a criminal act, no exception for financial harm, no exception to protect the interests of the attorney.
Attorney-Client Privilege in the Context of Business Entities
Control-Group Test -
We look at the communications with the “control group”....the BOD, CEO, etc (highest ranking officers). Anyone else is a mere employee.
Subject-Matter Test -
if an employee is talking with an attorney on a subject matter which relates to their service to the entity, then their communication is privileged.
Functionality Test (CALIFORNIA RULE)
If employee seeks out attorney then it is privileged. If communication between employees and attorney bears on a matter which threatens to give rise to liability...then it is protected/privileged. BUT...if the employee is merely talking about something they witnessed (not something they engaged in personally) then it can be subpoenaed and forcibly revealed. This falls somewhere between the control-group test and the subject matter test.
Any member of the control group speaking to an attorney is privileged.
If an ordinary employee seeks out an attorney seeking advice on how to conduct themselves...that is privileged
But, when an attorney initiates the conversation, or is investigating something....those communications are not privileged
Government Attorney-Client Privilege
There is LESS protection for privilege with Government clients because we want more transparency
Agency Relationship of Attorney-Client
Actual Authority - Client expressly tells lawyer
Implied Authority - A reasonable attorney (agent) would believe it is implied based on the actual authority (e.g. I want you to build a football stadium implies the authority to buy wood and concrete)
Apparent Authority - when client represents to 3rd party that agent has certain powers
Inherent Authority - Regardless of what the principle tells the agent, by the nature of the position of the agent (e.g. attorney)....the agent has the authority to bind the principle in all actions that would typically come with that kind of agency. THIS INCLUDES AN ATTORNEY’S TACTICAL DECISIONS DURING LITIGATION
Some tactical decisions are reserved for the client:
Waive Jury Trial