Daniel J Blanchette JD



CIV LIT PARA 97(b) Ch 5 SUPPLEMENT (COMPLETE)ConfidentialityIn CA: part of oathProtects all information from any disclosure related to representation, regardless of where or when derivedDiffers from A/C privilege: A/C priv applies only to communications made during course of relationship and only covers formal testimonyExceptions to Confidentiality:Compelled by law or court order;To collect attorney’s feesTo defend against IAC claimAllows, but does not require:When necessary to prevent a criminal act that will cause death or substantial bodily injuryA/C privilegeClient is holderA person, or entity, seeking legal servicesExtends to representatives of clientsAttorneyOne reasonably believed by client to be soExtends to agents ofCorporate A/C privilegeOld rule: control groupRecent: if information divulged was gained during the course of corporate dutiesExamination by doctorIf examined at attorney’s request, A/C priv attaches; not physician patientDurationIndefiniteOutlasts representation and lifeNon-applicabilityFuture wrongdoingDispute between attorney and clientConflicts of interestPL’s bring conflicts from their pastConcurrent conflictsRepresentation of one client is directly adverse to the interests of another; or,There is a significant risk that the representation of a client will be materially limited by a lawyer’s personal interests, or those of another client; former client; or third personConsentClients can consent to waive conflict;Written, informed consent; court approval if challengedImputed conflictsIf one lawyer in a firm is conflicted, that conflict is imputed to all others in the firmScreeningIf conflicted lawyer is timely screened;Does not share in fee;Potentially conflicted former clients are notified;Actual confidential informationIf gleaned from representation, you are conflictedSpecific ConflictsFinancial interest adverse to clientUnless:Fair and reasonable;Fully disclosed with opportunity to seek independent counsel;Written consentImproper use of informationCannot useDesignation oneself as beneficiaryUnless related to doneSubstantial gift when preparing instrumentAssumption of undue influenceMedia RightsCA does not follow model: if client waives and court accepts Financial assistanceCA ban is very broad: no financial assistance to clients, except court costs up frontProprietary interest in outcome of caseCannot have, but can take case on contingency feeNo file liens in CASex with client:CA is less strict than model rulesCan’t demand it;No coercion or undue influence;Can’t let it interfere with competent representationFormer clientsCannot accept representation that is materially adverse to a former client’s interests; andCannot if lawyer gleaned material information from adverse clientProspective clientsBan extends to prospective clients regarding any and all received informationExtends to initial consultationMuddying the watersStanding A person must have a concrete stake in the outcome of a caseComponentsInjury in fact;Causation;RedressabilityDecision in litigant’s favor must be capable of eliminating grievanceExceptionsGuardian ad litemClass actions – sort ofChild support: county can sue on behalf of parentCapacityAdult and Competent Emancipated minors Fugitives lack capacityConsidering COA’sWhat elements much be met;What evidence is required for each elementHow to obtain that evidenceSources of informationThe clientThird partiesFirst-hand witnessesExpertsOpposing partyBook mentions, but be sure to check with client first;Once opposing party has counsel, cannot contact party directly, at allDocs and thingsWhen to sueLearn SOL’s : Ch 5, p 11CONTINUED:Respondeat SuperiorVL Superior is liable for the torts committed by employees in the normal course of businessFrolic v. DetourICJoinder of PartiesBringing together different parties into one law suitCompulsory and permissiveCompulsoryMust be joined, if:The party’s presence is required to grant complete relief; orThe party has an interest in the action that must be protected; orThe party’s absence may expose other parties to double obligationsThese are then ‘necessary parties’If one or more necessary parties cannot be joined, the case will be dismissed, w/out prejudicePermissive JoinderWhen there is a legal or factual relationship between the parties, making it sensibleCan Join if:Party has a in interest in the property or controversyClass actionsIndividuals may be allowed to opt out of the class and bring suit independentlyRelief can be sought separately or jointly Joinder of claimsA plaintiff can join any number and type of claims against a ?;With multiple π’s or multiple ?’s, it is essential only that at least one of the claims arises out of a transaction in which all were involvedSuccessive claimsAllowed: ex: a plaintiff joins two claims when success on the first is a prerequisite to the secondSuit for money damages and a suit to set aside a prior conveyance as fraudulent b/c of the debt on the prior claimClass actionsNamed representatives allowed to sue on behalf of a class, if:Class is so large that joinder is impracticable;There are questions of law or fact common to the class;The named parties interests are typical of the class;The named representatives will ensure fair and adequate representation of the interests of the class; and:Any of the following:Risk of inconsistent results; orInjunctive or declaratory relief is appropriate to the class as a whole (civil rights cases); orCommon questions of law or fact predominate over individual issues.Party changing during law suit:Death: many claims die with the litigant, but not allWrongful death claim survives; pain and suffering typically do notTransfer of a party’s interestWith court approval, a new party can be substituted into a lawsuit: original party transfers claim to new partyIntervention by a new partyWhen an outside party voluntarily enters a lawsuitSomeone not named in the suit may become a party if he has an interest in the outcome of the caseCan intervene on π’s or ?’s sideb/c it is voluntary, compulsory and permissive are a bit different herecompulsory, here, means the court must allow the intervenor, if:interest in the property or transaction;that interest would be substantially prejudiced in his absencepermissiveat court’s discretion, if:a clear, direct, immediate interest (In CA: indirect and consequential will defeat intervention); andintervention will not complicate the issues; andreason for intervention outweighs opposition by existing partiesIntervention procedure:Timely application filed with court seeking leave or permissionBy noticed motion or ex parteDue diligence requirement to keep out frivolous petitionsCopies of a “proposed intervention” filed with motionSOME CONFUSION IN NOMENCLATURE CROSS COMPLAINT IN YOUR SUPPLEMENT HERE: THINK CROSS CLAIM; NOT CROSS COMPLAINT (though the terms here are interchanged)Cross claim:By a defendant against a existing co-defendantConfusion comes from the procedure: defendant files a cross-complaint against his co-defendant.Interpleader: Stakeholder has property of some sort that it does not own;Think: insurance company holds policy; two parties claim an interest in the policy (spouse and ex-spouse claim life-insurance)Two or more parties claim an interest in that property;In some instances, the stakeholder deposits the property with the court;The competing parties go to trial;The property is distributed in accordance with result of trialPrevents a stakeholder from being subject to multiple liabilityImpleader (third party practice) A defendant may implead a nonparty who is or may be liable for any part of a judgmentClaims for indemnityIndemnity: duty to make good any loss, damage, or liability incurred by anotherThink: insurance companyNon-indemnity claimsOriginal defendant becomes third party plaintiff: Plaintiff because he is dragging someone new into the suit, and that someone new had no previous commitment to indemnifyOriginal defendant is saying: this guy should be paying some of thisImpleaded party responds:After being joined, the impleaded party is now a third party defendantHe can assert any defenses to the original plaintiff’s claim; and/orHe may assert any defenses against the third party plaintiff (the original defendant) ................
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