...Assignment: Unit 3 Confidentiality and Attorney/Client Privilege Name: Donna Marie Brown Date: July 26, 2015 Possible Points: 100 Confidentiality and Attorney- Client Privilege Donna Marie Brown Kaplan University Confidentiality and the Alton Logan Case “Sometimes trying to make wrongful conviction right, creates an ethical tension for civil and criminal attorneys. With any kind of practice, but mostly with criminal defense, a lawyer may learn from a client that they committed a crime ascribed to someone else. When an innocent person is faced with conviction, imprisonment, or in some cases, the death penalty, and the attorney is mindful of the injustice occurring to a third party, the lawyer is still bound by the rules of confidentiality to honor their commitment to their client.” (Strutin, 2015) And this begins the case with Mr. Alton Logan. In 1982, Alton Logan was convicted of killing a security guard at a Chicago-area McDonalds. Even though the testimony that Logan was at home when the murder happened, the jury still found him guilty of first degree murder And to top it off, the two attorneys, Dale Coventry and Jamie Kunz, knew Logan was innocent. And how did this knowledge come about? Andrew Wilson, the attorneys’ client, admitted to the murder. The two attorneys who were representing Wilson, for killing two policemen, was told by Wilson that he was also guilty of killing the security guard at McDonalds. But because of the attorney-client privilege, Coventry and Kunz...
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...Attorney-Client Confidentiality Paper The Court System CJS_220 February, 2013 The attorney-client confidentiality covers all communication between any person looking for legal advice and a lawyer, is protected legally because this type of communication is considered “privileged” and to be confidently. The disclosure of any information to third parties about any type of mention for what the issues are about with the case is strictly condoned. The attorney-client confidentiality is covered under all types of lawyers, or even attorney legal assistances for any kind of civil, criminal or even all information about marital divorce cases ("Understanding Lawyer Client Confidentiality", 2013). According to “The Basics of Attorney Client Privilege" (2013), the courts do have exceptions for upholding privilege information if the other person is put into great harm and that a judge may force disclosure over certain factors. There is also some information that will and cannot be covered under confidentiality or privilege information about committing or intent to commit fraud or a crime. The privilege is essential for communication, trust, and confidentiality between the client –lawyer relationship to work and because the lawyer needs to know any information concerning the case to help represent the facts of a case (Ch. 6, p. 161-162). According to “The Basics of Attorney Client Privilege” some states apply different attorney-client privilege laws and the government has...
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...with a thought to potential litigation. Attorney Client Privilege and the Work Product Doctrine are two separate and distinct issues and should be treated within the legal world as separate disclosures. Attorney Client Privilege, which originated in Roman and canon law, has evolved into a recognized judicial doctrine and is necessary in order to provide clients with access to effective, well informed counsel. In Upjohn Co. v US the Supreme Court the Court stated that “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”(a) However, since the passage of the Patriot Act (b) (terrorism, September 11, 2001), and the various corporate scandals leading to the Sarbanes Oxley Act(c) and the Securities and Exchange Commission (2001 Seaboard Report) and the fall out from such companies as Enron, WorldCom the federal, state and regulatory offices of the government are attempting to pierce the Attorney Client Privilege. The government has attempted through two (2) separate practices to tear into what was once considered a “privilege” that was recognized and adhered to throughout the US. The two (2) issues we know face are (i) attorneys are being required to “waive” attorney client privilege in order to appear cooperative. Failure to waive has resulted in the court stipulating that the attorney was being uncooperative; thus penalties have...
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...team working on a case has the duty to remain silent when information about a case has been made public. “The Duty-is a personal promise made to each client” (Confidentiality Issue: Public Information) Thomas F. Goldman. Rule 1.6 of ABA model rules requires lawyers to keep any information received from a client private at all times, even if the case is made public. For instance, in the video Alesha reads a newspaper article aloud containing information to a case Judy is currently working on. Even though the case was public and Alesha read it aloud Judy was still not able to give any information to Alesha due to confidently laws that protect the client. Information made public can always be false, newspapers always want to create drama sometimes creating more of the situation when that is not the case. In the second scenario Judy did the right thing by telling Alesha she shouldn’t believe everything she reads and that it was not a good idea to talk about the case where there are so many people present. If incorrect information about a case has been made public, members of a legal team cannot correct this misinformation. If any person in a legal team decides to correct the information, it would be a violation of confidently and can result in serious consequences. Information that newspaper leaks or creates is to be ignored and attorneys are to focus are the information that they have. Just as in the video when Alesha found the newspaper article with Judy’s case after reading it aloud...
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...DUTIES TO CLIENT Fiduciary Duty 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 for the client during discovery....if a third party is present the privilege is lost. Work-Product Doctrine this extends to memorializations of conversations with 3rd parties, but not the actual conversations themselves. Anything produced/recorded in the process of and bearing on the legal representation of a client is protected (e.g. interviews, artifacts, documents, mental impressions...meaning ideas/thoughts, etc) POLICY: We want attorneys to record their impressions so they can have more sophisticated representation, therefore we protect it. BUT, if your opponent can show a substantial need for the material AND they show that they cannot get it in any other way....then you have to hand it over. The attorney-client privilege is thus stronger than work product (because WP can be...
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...Governor-Attorney Client Privilege I. The Office of the Governor should not invoke government attorney-client privilege to prevent testimony by a government lawyer when the lawyer is subpoenaed in a federal grand jury investigation for possible federal criminal violations. This decision is up to the courts in a case by case basis. a. Attorney Client Privilege is subject to the common law by courts “in the light of reason and experience.” FRE 501. i. FRE 501 can be relied on over FRE 503 at the discretion of the Court. 1. FRE 503(a)(1) only makes “broad propositions that a governmental body may be a client for purposes of the attorney-client privilege” (In Re Duces Tecum, 8th circuit, 916). a. “We are instructed by Rule 501 to interpret the attorney-client privilege via common law ‘in light of reason and experience’ and not solely in light of the rule promulgated by the Supreme Ct. in 1972” (Id). ii. Necessity of Granting Potentially Relevant Info to Fed. Grand Jury as a matter of Constitution and Criminal Justice. 2. It is up to the federal grand jury to determine whether there is sufficient evidence to justify a formal accusation against a person for a crime (US Constitution, 5th amendment). 3. The rule of law should reign supreme and should be considered natural that every step be taken to ensure that justice be served promptly. b. “Supreme Ct. recognizes that the principle...
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...The Paralegal Profession and Ethics Based on the reading for this week, describe the role of a paralegal and the skills necessary to be a paralegal. Why are these skills important? Are paralegals able to represent clients? What is attorney-client privilege and how does this relate to the role of a paralegal? Summarize the Biblical Model as presented by Professor Bern. Post: The role of the paralegal: I would say that the role of a paralegal is primarily to assist an attorney, law office, or government agency. But there can be other roles as well that are less common, such as but not limited to assisting individuals in matters involving the social security administration. The roles of the paralegal and what duties they perform can vary widely from the common conception of working under an attorney or law firm by preparing for hearings, trials, meetings, real estate closings, helping draft documents, and even maintaining financial records; to working for federal, state, or local government agencies collecting and analyzing data for internal use as well as preparing information for use by the general public. Thomas F. Goldman & Henry R. Cheeseman, The Paralegal Professional 4, 5 (3rd ed. 2011). The skills of the paralegal: The skills of a paralegal very widely depending upon the type of work the paralegal is specialized in or engaged in. But there are some common skills shared by most paralegals and are very important. These common skills are also known as soft skills...
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...a security guard in which he did not commit. The true murderer, Andrew Wilson, had also committed two other murders of whom were police officers. Attorneys Dale Coventry and Jamie Kunz were the attorneys for Andrew Wilson, they knew that Mr. Wilson was guilty of the murders, however, under their duty of confidentiality they were unable to break the silence and speak up for 26 long years. There was an affidavit written by the attorneys, to hold onto just in case if anytime down the line there was an opportunity to speak up, they would be able to do so. According to Rule 1.6: Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a crime in circumstances other than those specified in paragraph (c); (2) to prevent the client from committing fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another...
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...educational experience. He graduated with his Bachelor of Arts degree in English from the University of Kentucky in 1976 and three years later received his law degree from the same school. He has been a partner in a law firm, a solo practitioner, and has done work in General and Family Mediation. He has also been a fulltime instructor in Paralegal Studies at Sullivan College, Lexington, KY, where he has taught such classes as Legal Research, Advanced Legal Writing and Appellate Practice, and Wills and Estates. He was given the “Teacher of the Year” award in 1997. Mr. Wilson has also had a number of papers published on legal topics in both scholarly and popular journals. About the Reviewer Brian Bastyr is a senior attorney editor for West Group, a legal publishing company. He earned a bachelor’s degree at the University of Illinois, and a Juris Doctor from the University of Illinois College of Law. He is currently a member of the Illinois bar, and has published a number of articles in legal journals. All terms mentioned in this text that are known to be trademarks or service marks have been appropriately capitalized. Use of a term in this text should not be regarded as affecting the validity of any trademark or service mark. Copyright © 2015 by Penn Foster, Inc. All rights reserved. No part of the material protected by this copyright may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying...
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...As Patty’s attorney, Ann has a duty of confidentiality, loyalty, fiduciary responsibility and competence to her. This means that she must work hard on her case and follow up any possible leads that Patty may give her and follow up on any reasonable requests made by Patty. As an attorney, however, Ann has a duty of candor, fairness and dignity to the court, her adversary and the public. Because Ann knew that the Police Dept. (PD) was being represented by Bob she was aware that any contact with a police officer could possibly be a violation of these duties. She could have a potential conflict because at minimum. She could have an actual violation of these duties if she were, in fact, having ex parte communications with a represented adversarial party. Ann could argue that B represents the PD in general, but not Carl personally, therefore she was w/i her right to contact him. The PD will argue that because Carl is a police captain, he is in a position of authority that someone would naturally look to for advice information. Further, a police captain is in a position to make decisions that could bind the PD organization his decisions could affect the PD. Because there is no one single individual to look to as being the defendant, you must look to those individuals who appear to represent the organization, can bind the organization by their decisions, has [sic] a leadership position would be someone that one would look to for answers. She should have gotten Bob’s permission to...
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...local police and reported his conversation with Stewart. Stewart was arrested for capital murder. At trial, James Careful testified against him. Careful related the entire March 14 conversation to the jury. Stewart was eventually found guilty of six counts of capital murder and was sentenced to death. Issue The issue is whether or not Stewart can petition for a writ of habeas corpus and whether or not Mr. Careful violated the attorney-client confidentiality privilege. Rule The ABA Model Rules of Professional Conduct (ABA MPRC) has changed the landscape of attorney-client relations by creating an exception to confidentiality. Under the MRPC Rule 1.6(b) (1) a lawyer may "reveal" or "use" confidential information "to prevent reasonably certain death or substantial bodily harm.” McClure v. Thompson, 323 F.3d 1233 (9th Cir. Or. 2003) Petitioner sought habeas corpus relief pursuant to 28 U.S.C.S. § 2254 after being convicted for three aggravated murders. Petitioner claimed ineffective assistance of counsel, alleging that his original defense attorney improperly disclosed the locations of the bodies of two children whom petitioner was ultimately convicted of killing. Although the appellate court held that petitioner's consent was not fully informed, the disclosure was nevertheless proper because...
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...Attorney-Client Confidentiality Attorney-client confidentiality is a legal concept that was created to protect certain communications or conversations between a client and his or her attorney in which they have chosen to represent them. These communications are meant to be kept confidential between both parties. So even if a lawyer is representing a person, and him or her openly admits to committing a crime, its still up to the lawyer to prove his or her innocence. The attorney-client privilege is recognized as one of the oldest and most recognized privileges for confidential communications. The United States Supreme Court has always stated that by assuring confidentiality the privilege encourages clients to make complete and truthful disclosures to his or her attorneys, who are then in better positions to be able to provide the best advice and the most effective representation in their defense. In majority of cases, the determination that the attorney-client relationship exists is not a difficult process. “Assume that the attorney-client relationship is well-established, is every communication protected? That also depends. The basic attorney-client privilege protects client communications with the attorney. It also extends to responsive communications from the lawyer to the client. However, the communication need not be as evident as an oral or written action. On the contrary, the slightest action or inaction, such as an affirmative nod or complete silence, may constitute...
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...involving a conflict of interest is Kennedy v. Eldridge, 201 Cal. App. 4th 1197 (2011). This was a family law case involving an unmarried couple and their child. The dispute was over paternity, child support and custody of Calvin Kennedy-Eldridge. The parties involved were the mother, Kayla Kennedy, and father, Tyler Eldridge. The attorney representing Tyler Eldridge was Richard Eldridge. Richard is Tyler’s father, which is where the question of conflict arose. Attorney, Richard Eldridge had past client and business relations with Kennedy and her family members. Kennedy moved to disqualify Eldridge as Tyler’s attorney on the grounds he had previously represented her father in a divorce proceeding. Kennedy also claimed to have provided a declaration to Richard’s firm in connection with the divorce. Kennedy’s stepmother, whom was the adverse party in her father’s divorce was also previously employed by Eldridge’s firm and contended that he had access to confidential information to which he could potentially use against her. Eldridge opposed the motion to disqualify on the ground that Kennedy lacked standing. He argued that because she was never Richard's client, Richard owed her no duty of loyalty or confidentiality that he would breach by representing Tyler. The trial court rejected that reasoning, concluding that Kennedy had standing to bring the disqualification motion and that Richard's role as an advocate for Tyler and potentially as a witness in the present custody dispute...
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...when she asked for an attorney. He did not identify himself as a paralegal. Carl failed to identify himself as a paralegal. ABA 5.5 (b) ( NFPA EC-1.7(a) A paralegal’s title shall clearly indicate the individual’s status and shall be disclosed in all business and professional communications to avoid misunderstandings and misconceptions about the paralegal’s role and responsibilities. When Carl took a third person into the interview, that was a breach of confidentiality. (NFPA 1.5 A PARALEGAL SHALL PRESERVE ALL CONFIDENTIAL INFORMATION PROVIDED BY THE CLIENT OR ACQUIRED FROM OTHER SOURCES BEFORE, DURING, AND AFTER THE COURSE OF THE PROFESSIONAL RELATIONSHIP) ABA 1.6 Carl was advising the client about alimony, fees, and other matters, which crossed the line on practicing law. (NFPA EC-1.8(a) A paralegal shall comply with the applicable legal authority governing the unauthorized practice of law in the jurisdiction in which the paralegal practices) ABA 5.5 Carl allowed the friend of the client to possibly see names and information on Attorney Howe’s desk. (NFPA 1.5 A PARALEGAL SHALL PRESERVE ALL CONFIDENTIAL INFORMATION PROVIDED BY THE CLIENT OR ACQUIRED FROM OTHER SOURCES BEFORE, DURING, AND AFTER THE COURSE OF THE PROFESSIONAL RELATIONSHIP.) ABA 1.6 When Jane and Zeke walk through the reception area, Carl starts talking loudly about the case, mentioning alimony—another breach of confidentiality. (NFPA 1.5 A PARALEGAL SHALL PRESERVE ALL CONFIDENTIAL INFORMATION PROVIDED...
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...the defense attorney to represent the actual jury; sits through the trial and provides feedback to the attorney on the evidence presented during the trial. 251 Attorney-client privilege- The legal rule by which an attorney cannot disclose confidential information regarding his or her client except in a very few specified circumstances. 251 Situational model- A conceptualization in which lawyers weigh the priorities in each case and decide each case on the particular factors present. 255 Systems model- An absolute or legalistic model in that an attorney’s behavior would always be considered wrong or right depending on the ethical rule guiding the definition. 256 Asset-forfeiture- A legal tool used to confiscate property and money associated with organized criminal activity. 261 Halo effect- The phenomenon in which a person with expertise or status in one area is given deference in all areas. 266 Criminalistics- The profession involved in the application of science to recognize, identify, and evaluate physical evidence in court proceedings. 268 Federal sentencing guidelines- Mandated sentences created by Congress for use by judges when imposing sentences (recent Supreme Court decisions have overturned the mandatory nature of the guidelines). 277 Chapter 9 Questions: 1. Explain the confidentiality rules of defense attorneys, and some situations where they may be able to disclose confidential information. The ethical duty of confidentiality prohibits an attorney from disclosing...
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