THE LAWYER-CLIENT BREACH OF DUTY ("SELF-DEFENSE") …
Table of Contents TOC \o "1-3" \h \z \u I.THE LAWYER-CLIENT BREACH OF DUTY ("SELF-DEFENSE") EXCEPTION PAGEREF _Toc323401976 \h 11.Breach of Duty By Client PAGEREF _Toc323401977 \h 12.Breach of Duty By Lawyer PAGEREF _Toc323401978 \h 1II.THE CRIME-FRAUD EXCEPTION PAGEREF _Toc323401979 \h 21.Conduct Triggering the Crime-Fraud Exception PAGEREF _Toc323401980 \h 22.Procedures to Evaluate Application of the Crime-Fraud Exception PAGEREF _Toc323401981 \h 2III.THE "DEATH OR SUBSTANTIAL BODILY HARM" EXCEPTION PAGEREF _Toc323401982 \h 3IV.THE SHARED INFORMATION EXCEPTION PAGEREF _Toc323401983 \h 31.Joint Clients Exception PAGEREF _Toc323401984 \h 4a.Joint Clients in Insurance Cases PAGEREF _Toc323401985 \h 42.Joint Defense, Common Interest, or Pooled Information PAGEREF _Toc323401986 \h 4V.THE TESTAMENTARY EXCEPTIONS PAGEREF _Toc323401987 \h 5VI.THE FIDUCIARY EXCEPTION PAGEREF _Toc323401988 \h 6VII.THE DERIVATIVE SUIT EXCEPTION PAGEREF _Toc323401989 \h 6VIII.WAIVER OF THE PRIVILEGE PAGEREF _Toc323401990 \h 81.Express Waiver PAGEREF _Toc323401991 \h 82.Implied Waiver PAGEREF _Toc323401992 \h 8a.Limited Waiver (Exception to the policy of Total Waiver) PAGEREF _Toc323401993 \h 9IX.TERMINATION OF THE PRIVILEGE PAGEREF _Toc323401994 \h 101.The Dead Client Confession Problem PAGEREF _Toc323401995 \h 11a.Prosecutors and Wrongful Convictions PAGEREF _Toc323401996 \h 11THE LAWYER-CLIENT BREACH OF DUTY ("SELF-DEFENSE") EXCEPTIONCA Evidence Code: "There is no privilege ... as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship." and also is necessary for the attorney to state his or her caseABA MR: permits a lawyer to reveal confidential information (1) to establish a claim or defense in a controversy with the client, (2) to establish a defense to either a criminal charge or a civil claim "based upon conduct in which the client was involved," or (3) to "respond to allegations in any proceeding concerning the lawyer's representation of the client."Breach of Duty By ClientIn most cases, involves a failure to pay the lawyer's feeSome cases involve unethical or illegal client conduct:Spratley v. State Farm (Utah)Former in-house counsel of State Farm could disclose the insurance company confidences as reasonably necessary to establish allegations of wrongful discharge based on State Farm's unethical and tortious conduct.The former counsel could not disclose confidences of the insureds (policy holders) because they were neither brining a claim against them nor defending themselves against any claims made by those insureds. CA takes the opposite approachNo lawyers can use confidential information to prove their case in wrongful termination matters. So CA and MR differ on this particular issue. ?Breach of Duty By LawyerAn attorney is released from obligations of secrecy if disclosure of communications, otherwise privileged, becomes necessary to protect the attorney's own rights, such as when the attorney's integrity, good faith, or performance of duties is questioned by the client who has filed disciplinary charges, or claimed malpractice or ineffective assistance of counsel.By bringing a cause of action, client waives the privileged information, because the only way the lawyer can defend against those charges is by revealing what was said related to those allegations. Bittaker v. Woodford: D convicted of multiple murders sought habeas corpus on the grounds of ineffective assistance of counsel. Court held that waiver of the a/c privilege extended only to litigation of the federal habeas petition, and couldn’t be turned over to other law enforcement or prosecutorial agencies.The exception is limited to communications between the client and the former attorney charged with the malpractice.Former attorney can't get to communications between former client and his current counsel. Schlumberger.Former client can't get communications between former attorney and his malpractice carrier. Travelers Insurance Companies.Solin v. O'Melveny & Myers (CA) Facts: clients hired attorney Solin and gave him confidential info about their criminal activities. Solin hired counsel from O'Melveny to advise him personally about this representation. Solin disclosed the confidential info to the O'Melveny attorneys, but later filed suit against those attorneys claiming he received incompetent advice. Attorney-Defendants wanted to disclose the client's confidences, and the clients intervened to try to claim the a/c privilege.Holding: A/C privilege outweighs interest in Plaintiff bringing suit. An attorney plaintiff may not prosecute a lawsuit if in doing so client confidences would be disclosed. THE CRIME-FRAUD EXCEPTIONCA Evidence Code: "There is no privilege ... if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud." Communication to an attorney that constitutes a threat to a third party does not fall within the crime-fraud exception.Note: the threat, if made during a confidential communication with an attorney where advice is given, then it would be protected under the attorney-client privilege. Conduct Triggering the Crime-Fraud ExceptionThe exception focuses on the intent of the client, not the intent of the lawyer, who does not have to be aware of the fraud for the crime-fraud exception to apply. It applies when a client knew or should have known that the intended act was unlawful and the attorney's advice or services were sought to facilitate the crime or fraud.If lawyer knows advice is being sought to commit or continue committing a crime, then the lawyer is a co-conspirator. Exception does NOT apply:With attorney-client communications concerning past or completed crimes. Freedom Trust v. Chubb Group of Insurance Companies (C.D. Cal.): Federal court concluded that the California Supreme Court would hold that bad faith does not fall within the scope of the crime-fraud exception. Bad Faith is not a crime or fraud in California?Procedures to Evaluate Application of the Crime-Fraud ExceptionZolin (SCOTUS):A district court in appropriate circumstances may conduct an in camera review of privileged documents to assess whether they fall within the crime-fraud exception. The district court should conduct a Two-Step analysis:Require that the party alleging crime-fraud show a factual basis adequate to support a good faith belief by a reasonable person that an in camera review of the materials may reveal evidence to establish the claim that the exception applies; andIf this showing has been made, make a discretionary decision whether to order an in camera review in light of the facts and circumstances surrounding a particular case. In re Gran Jury Subpoena (9th Cir.): In the second step of the Zolin analysis, the court may consider available evidence other than just that brought by the one arguing for the exception.But Zolin does not require the court to undertake such an examination In re Napster (9th Cir.)Both parties have a right to present evidence to the district court on the applicability of the crime-fraud exception.Party seeking disclosure must prove by a preponderance of the evidence that the crime-fraud exception appliess.THE "DEATH OR SUBSTANTIAL BODILY HARM" EXCEPTIONCA Evidence Code: "There is no privilege ... if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual."This section concerns disclosure of information during a legal proceeding after the opposing side has made a request for discovery.For Example: People v. DangFacts: During trial, defendant implies when speaking to attorney that he is going to kill one of the witnesses. Holding: Exception applies, and the threat can be admitted in court. What about threats made outside of the litigation context?Whether any attorney may make a voluntary affirmative disclosure of client threats or crimes outside the litigation context is discussed in Chapter 13 – they may disclose to prevent death or substantial bodily harm. ?THE SHARED INFORMATION EXCEPTIONIn certain situations, the privilege is extended even though disclosure has been made to third parties but there are exceptions:Joint Clients ExceptionPermits discovery among the joint clients who have shared confidences with each other while being involved in the same matter, and now have become adversaries. CA Evidence Code: "Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of any of them, may claim a privilege under this article as to a communication made in the course of that relationship when such communication is offered in a civil proceeding between one of such clients (or his successor in interest) and another of such clients (or his successor in interest)."Difficulties arise when the communication from one client to the attorney was made in confidence when the other client was not present.Hecht v. Superior Court (Ferguson) (CA): All partners in a partnership business are entitled to attorney-client privileged communications relating to the partnership business. Therefore, conversations between husband and partnership attorney were discoverable for the limited purpose of revealing how the wife was deprived of participation in the new corporation. ?Joint Clients in Insurance CasesGlacier v. Superior Court (Camou) (CA) - 95 ‘Cal. App. 3d 836: Facts: Patient of a doctor died. Heirs of the patient sued doctor for medical malpractice. Because the judgment against the doctor exceeded the insurance policy limit, the doctor had a potential bad faith failure to settle cause of action against the insurer, which he assigned to the heirs of the patient, who then sued the insurer. Heirs sought discovery of files of the law firm hired by the insurer to represent the insurer and the doctor (the insured). Holding: No privilege - Exception appliesBecause the insured had assigned the bad faith cause of action against the insurance company to the heirs, the heirs stand in the shoes of the insured.Essentially, through the heirs, the insured is an adversary to the insurance munications between the lawyer and the other joint client, the insurance company, are therefore discoverable, even though the insured doctor was not present during these communications. Exception does not apply where Insurer retains its own counsel to determine whether it is liable under a policy with the insured. Because here, the insurer has not yet employed an attorney to defend the insured, which would trigger the exception. Joint Defense, Common Interest, or Pooled InformationRestatement:"If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged ... that relates to the matter is privileged as against third persons." "Any such client may invoke the privilege, unless it has been waived by the client who made the communication." The common interest may be "either legal, factual, or strategic in character." NO CA Statute contains a joint defense or common interest evidentiary privilege. But CA law protects common interests under a waiver analysis, whereby protection under the attorney-client privilege is not lost (there is no waiver) if there is disclosure of a privileged communication to persons having common interests "when disclosure of the communication is reasonably necessary to further the interest of the litigant." A common interest agreement strengthens the case against waiver, but such an agreement is neither a requirement nor a guarantee. OXY Resources (CA). President v. Office of Independent CounselFacts: OIC wants notes from Office of White House Counsel in investigation of potential criminal activity. Holding: There is NO common interest, because the White House itself is the client, and it cannot be sued, and therefore no one can have a common interest with the White House, which is an institution impervious to legal liability. Note: with these exceptions, outsiders don't have access to informationIt's only when people turn on each other.THE TESTAMENTARY EXCEPTIONS CA Evidence Code:Involves the passage of property after the death of a clientThe exceptions are intended to allow the deceased client's lawyer to effectuate the client's true desires, especially when the distribution of the client's property has become a matter of dispute among contending heirs. Exceptions only apply to communications arising under the relationship between the attorney and the deceased client.California: NO privilege "as to a communication relevant to an issue between parties all of whom claim through a deceased client...." Exception does not apply if the legal dispute is between the estate and a “stranger.” Clark v. Second Judicial District: The exception does not apply when parties argue that they are entitled to share in the estate because the decedent breached a K to leave them property in a will. Here, the plaintiff is a “stranger” -- claiming "against" rather than "through" the decedent. Fletcher (CA): the rule refers only to communications between the decedent and the decedent's attorney, and not to communications between one of the claimants and that claimant's attorney (even if claimant's attorney and decedent's attorney is the same person). THE FIDUCIARY EXCEPTIONUnited States v. Mett (9th Cir.)Facts: Defendants convicted of conduct relating to improper transactions involving pension benefit plans administered by them, as trustees. They contend that memoranda sent to them by their then-counsel which was admitted into evidence, as well as the counsel's testimony relating to the memoranda, should have been excluded in light of the attorney-client privilege. Government argues the "fiduciary exception" to the a/c privilege. Issue: A/C Privilege?Rule: Fiduciary Exception: Where a fiduciary (e.g., trustee) seeks an attorney's advice on a matter of plan administration and where the advice clearly does not implicate the trustee in any personal capacity, the trustee cannot invoke the attorney-client privilege against the plan beneficiaries.Exception is extended to permit the government to assert the exception in the beneficiaries' stead when prosecuting malfeasance in ERISA plan administration.On the other hand, when a plan fiduciary retains counsel in order to defend herself from civil or criminal liability against the plan beneficiaries (or the gov't acting in their stead), the attorney-client remains intact.Holding: Attorney-Client privilege protected the memoranda – the memoranda make it clear that advice rendered was not "on a matter of plan administration." They are devoted entirely to advising the defendants regarding their own personal civil and criminal exposure in light of undocumented withdrawals that had already occurred. Wells Fargo Bank, N.A. v. Superior Court (CA Supreme Court)Facts: Beneficiaries of a private trust seek to compel the trustee (Wells Fargo Bank) to disclose its privileged communications with attorneys. Issue: A/C Privilege?Holding: Attorney-Client Privilege ExistsCA does not recognize a "fiduciary exception" to the a/c privilege. The trustee, rather than the beneficiary, is the client of an attorney who gives legal advice to the trustee, whether on the subject of trust administration or of the trustee's own potential liability (different from federal courts). ?THE DERIVATIVE SUIT EXCEPTIONDickerson v. Superior Court (Ferrito) (CA)Facts: Minority shareholders of ADZ sued Dickerson, the majority shareholder and director, for breach of fiduciary duty and fraud involving an agreement between Dickerson and Harte-Hanks Communications, and its subsidiary Santa Clara Publishing, whereby Harte and Santa Clara would purchase all ADZ stock. Minority shareholders took deposition of the ADZ lawyer, but the lawyer refused to answer questions about his discussions w/ Dickerson concerning the acquisition, the benefits made to Dickerson, and a meeting he had with Dickerson.Issue: A/C privilege?Rule: As long as there is a holder of a privilege in existence, the attorney has the duty to exercise the privilege unless the holder of the privilege otherwise instructs him not to do so (because only the holder has the right to waive the privilege)HoldingHere, the client holding the privilege (ADZ- the corporation) merged into Santa Clara Publishing and has ceased to exist. The privilege is now held by ADZ's successor in interest (Santa Clara Publishing).Since the holder of the privilege is in existence, the a/c privilege can be invoked by the attorneyCA judiciary will not make an exception for the privilege - must come from the legislature?Derivative Suit Exception (Garner, 5th Circuit)In the situation where a corporation was in litigation against its own stockholders, beneficiaries (stockholders) may show cause as to why the privilege should not be invoked in the particular instance. BUT, this exception does not apply to confidential communications between the entity and its attorney that concern the derivative action itself, because the entity has the right to seek legal advice when sued without that advice being turned over to the adversary. CA courts have continued to reject a shareholder exception (like Garner) to the attorney-client privilege, even in a derivative action, and even with closely held corporations. McDermott (CA): Facts: When shareholder brings action in place of the entity, because the entity refuses to bring the action against corporation's outside counsel. Holding: A shareholder may not sue in this instance. Derivative lawsuit for malpractice against corporate outside counsel raises unique attorney-client privilege issues. Because the shareholders are not a holder of the privilege, they can't waive the privilege by filing a lawsuit on the corporation's behalf. As a result, since the corporation hasn't waived the privilege, the third party attorney is foreclosed from defending himself to the action because he still has to honor the privilege. This can't be the case. WAIVER OF THE PRIVILEGE General Rule: If you are the holder of the privilege, you are entitled to waive the privilege, expressly or impliedly by conduct. Attorneys cannot waive the privilege without authorization by the client, because they are not the holders of the privilege. CA Evidence Code:(a): "holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure...."(b): With joint holders of a privilege, waiver by one holder "does not affect the right of another joint holder to claim the privilege...." ?Express WaiverHolder of the privilege can expressly waive its protection Either I'll disclose or authorize my attorney to disclose, through a statement or writing of some kind = WAIVERImplied WaiverConduct of client could equal a waiverTypes of Implied Waiver: Implied AuthorityAttorney has the authority to waive privilege on behalf of his clientUsually for when the attorney needs certain information to make a settlement or plea bargain, or to obtain any other advantage for the client. Implied Waiver by SilenceClient offers no objection when he becomes aware that the lawyer intends disclosure of certain information. Implied Waiver by Claim AssertionIf you assert a claim against a lawyer that the lawyer has messed up the case. Only way attorney can defend himself is by disclosing the communications relevant to the claim against him = WAIVERThere is a choice for the client -- if he wants to litigate a claim against his attorney, then he must waive the privilege to the extent necessary to give his opponent a fair opportunity to defend against it. Advice of Counsel Asserting advice of counsel in defense of some litigation setting, you can't then say that the supposed advice can't be disclosed in court = WAIVERLimited Waiver (Exception to the policy of Total Waiver)Selective WaiverEven if communications between a lawyer and a client are shared with third parties, there may be no waiver if the sharing was reasonably necessary to further the interests of the client. Permits selective disclosure to that third party without sacrifice of the privilege to all other interested persons or parties. CA Evidence Code: the privilege is not waived "when such disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer ... was consulted."McKesson HBOC v. Superior Court (CA)Facts: Gov't announced an investigation of McKesson for possible securities fraud. McKesson retained a law firm to perform an internal review, and the law firm prepared a report for McKesson. Law firm shared the report with the Gov't subject to a confidentiality agreement that preserved the confidentiality of the materials passed to the Gov't. Shareholders of McKesson sued and wanted those materials. Court said there had been waiver of the attorney-client privilege. Holding: Total Waiver - Selective Waiver exception does not apply. Law firm was hired to investigate the alleged fraud and to determine who was responsible. Disclosure to the government was not necessary to accomplish that assignment. Issue of confidentiality agreements is open in jurisdictions that haven't addressed this issue. Waiver may occur when an attorney shows documents to a fact witness or expert witness to assist in the presentation of testimony.Sullivan v. Superior Court (Spingola)(CA)Facts: a client during a deposition was asked if she had used anything to refresh her memory. She responded that she had used a transcript of a tape recorded interview with her attorney who had asked about the facts of the case. Opposing counsel sought discovery of the transcript under CA Evidence Code.Rule: Any writing used by a witness to refresh his or her memory while testifying, or prior thereto, must be produced at the request of an adverse party. Holding: NO Waiver when client used transcript to refresh her memory. The word "writing" was never intended to mean a transcription of a client's original discussion with her attorney. That document being used to refresh the client's memory is not waived. Note: Congress has changed federal law so that core work product given to a witness continues to be protected against disclosure to opposing counsel. Partial WaiverCA Evidence Code: privilege is totally waived if the holder "has disclosed a significant part of the communication or has consented to such disclosure made by anyone." Statements that are "preliminary" or foundational" or "vague" are not specific enough to be "significant," and a mere acknowledgement that a lawyer and client had communications does not constitute a disclosure substantial enough to conclude that the privilege is waived. Travelers. Unless the substance of the protected communication was itself put into issue by the privilege holder – then privilege is waived. In re von Bulow (2d Cir.):Facts: Dershowitz gets a defendant off in a criminal case for the attempted murder of his wife, but defendant is then sued in a separate civil case by his wife. Before civil case, defendant had consented to the writing of a book by Dershowitz which disclosed communications between him and the defendant, as well as communications between defendant and other defense counsel. Plaintiff in the civil case now wants both the communications published in the book, along with all other related communications, including w/ other defense lawyers in the case.Issue: Waiver?HoldingDefendant's acquiescence in and encouragement of the book constituted a consent to Dershowitz's disclosure of his confidences and effectively waived his attorney-client privilege as to confidential communications actually disclosed in the book.As to undisclosed portions of those communications or as to other related communications on the same subject matter, the privilege was NOT waived regarding this material.Total waiver would not apply when the disclosures were extrajudicial and have not subsequently been placed at issue during litigation by the privilege holder in court. TERMINATION OF THE PRIVILEGE Swidler & Berlin v. United States (SCOTUS)Facts: Attorney made notes of an initial interview with a client shortly before the client committed suicide. Government now wants his notes for use in a criminal investigation. Attorney claims that the notes are protected by the attorney-client privilege and work-product privilege.Holding: Attorney-Client privilege survives the death of the client. Courts have 5 different answers to the question of whether the privilege survives the death of the client:Swidler (For Federal Courts): Privilege is ABSOLUTECA Approach: The privilege survives the death of the clientOnce the estate is finally distributed and his personal representative, the executor or administrator, is discharged. Example: Bing Crosby CaseFacts: while he was alive, Crosby entered into record contracts and hired a person to set up informal organization called BCE. Crosby then died and executor became holder of estate. Executor established company called HLC, which then acquired BCE. Record companies want attorney-client communications.Rule:CA Evidence Code 954(c): no privilege if no holderHolder is personal representative of estate if client is dead. Holder is a successor of an entity which is no longer in existence. Holding:Crosby's privilege was personal and therefore did not pass to BCE - no holder exists, so no privilege anymore. MR: attorney may disclose to prevent reasonably certain death or bodily harm. Privilege passes to client's heirs, who become joint successor holdersPrivilege ceases upon the death of the original holderUsually applies when the client is an expired corporation that has not been absorbed into a new corporate entity.The absolute privilege converts into a conditional privilege where the interests of justice outbalance preservation of the secrecy of the communications (this has been limited to rare criminal situations – where it may save a defendant’s life).The Dead Client Confession ProblemMacumber (AZ): Client made confession to attorney that he had committed the murder that defendant was on trial for. Client died and Defendant wants this confession disclosed by Client's attorney. AZ Supreme Court held that the privilege does not terminate with death, and is usually suspended only where it is in the best interests of the deceased. Communication is not discoverable. People v. Vespucci (NY): Even if the information was discoverable from the attorney, it would not be admissible at trial because the statements by the client "would clearly be hearsay and not fit into the exception of a declaration against penal interest...." ?Prosecutors and Wrongful Convictions Not addressed in CAMR: Prosecutors must meet the requirements of MRIf a prosecutor becomes aware of "new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted," the prosecutor must "promptly disclose" the evidence to a court or to another appropriate authority. If conviction was obtained in the prosecutor's jurisdiction, disclosure must also be made to the defendant's attorney.If the prosecutor becomes aware of "clear and convincing evidence" that a defendant in the prosecutor's jurisdiction was wrongfully convicted, the prosecutor "shall seek to remedy the conviction." ................
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