Date: June 30th, 2012 11:55 AM
a sample of my PR outline from NY ;-)
DUTY OF CONFIDENTIALITY
L may not knowingly disclose confidential information, or use such info to the disadvantage a client or advantage the L or a 3P such as another client or firm.
Confidential info consists of info gained during or relating to the rep of the client which is:
o Protected by the A/C privilege
o Likely to be embarrassing or detrimental to client
o Info the client has requested to be confidential
This duty is broader than the obligation to preserve the AC privilege which only addresses confidential info b/w A and C.
Ex: Client comes in and tells u about 3 murders that happened two years ago → You do nothing; its a past crime.
Ex: Client says he told his friend about the murders too → you do nothing; confidential info, its detrimental/embarrassing.
Exceptions to the Duty of Confidentiality
An L may reveal confidential information in the in the following circumstances:
o When permitted or required by rules, law or court order
Ex: Judge says you have to reveal → You MAY reveal
o To obtain legal or ethical advice for L. Use of hypos are ok
o To prevent client from committing a crime
o To prevent reasonably certain death or SBI. This allows the L to disclose client confidences to protect 3Ps such as children from serious risk of harm.
To withdraw a written or oral opinion or rep previously given by the L and reasonably believed by the L still to be relied upon by a 3P, where the L has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud.
o Ex: L may w/d statement of net worth filed by L in a matrimonial action if the L subsequently learns that the info contained therein is false.
Disclosure of info necessary to:
o Collect a fee / to defend self from accusation of wrongful conduct
Client has provided an informed consent to the disclosure or the disclosure is impliedly authorized to advance the best interests of the client.
o An L who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in crim conduct must take reasonable measures to the tribunal. This rule applies even if the L has to reveal confidential information.
Ex: During trial, client falsely testifies. You can 1) ask the client to correct testimony and warn of consequences, or (2) you correct it.
An L may refuse to offer evidence, other than the testimony of a D in a criminal matter that the L reasonably believes is false.
A person who discusses with L about the possibility of entering into a L/C relationship → prospective.
o Communicated info unilaterally to L; w/o any reasonably expectation that the L is willing to discuss the possibility of forming a L/C relationship
o Communicates to disqualify L for materially adverse rep or substantially related mater: no DOConf
SAFEGUARDING MONEY & PROPERTY OF CLIENTS AND OTHERS
Advance Fees: belongs to the client (goes into the CTA)
General Retainer: belongs to the attorney (goes into the Ls account)
Operating: firms account (to pay bills, salaries, etc)
Client Trust: only clients money goes here
o Account must be in NY
o Funds to maintain account are the only L funds that can be put in a CTA
o Dishonored Check Reporting: client funds must be placed that will provide this when check ounces. A copy of the report is mailed to the L after 10 days and also grievance committee. An L cannot deposit additional personal money.
Genearl rule of CTAs: have one, use it, keep records of its use and dont comingle funds.
o Dispute of Fees: if client insists that an L did a certain amount of work (1/3 of $30,000 retainer; but client says only 10%), then put 10% in the operating account, pay client the 20,000, and keep $7K in the CTA until dispute is resolved.
Trial Publicity restraints on public statements regarding adjudicative proceedings
No stmt may be made by L that a reasonable L would expect to be disseminated if the L knows or reasonably could know it will have a substantial likelihood of materially prejudicing a proceeding. Examples are:
o Character, reputation, or criminal record of party
o ID of W or expected testimony
o Possibility of a guilty plea, existence of a confession, and opinion as to guilt or innocence of D or suspect.
o Information L knows or reasonably should know will be inadmissible as evidence
o Fact that D is charged with crime unless stating it merely an accusation and that the D is presumed innocent.
L may state w/o elaboration:
o Dry facts of the case
o Warning of danger where there is a reason to believe of a likelihood of sub harm to person or public
o Crim case: info necessary to aid an apprehension of the accused