Legal Ethics and Professional Responsibility Commons^™

Conflicts Of Interest At An Organization’S Highest Authority: How The District Of Columbia’S Rules Of Professional Conduct Can Fail To Protect Private Organizations, Christopher Deubert

Catholic University Law Review

This Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous …

Ethical Limitations On Lawyer-To-Lawyer Online Consultations Regarding Pending Cases, Robert Derner

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and when lawyer-to-lawyer consultations are permitted in the online world. In all lawyer-to-lawyer consultations, but especially with the online variety, a lawyer must avoid violating the principle of confidentiality when consulting other lawyers about client matters. While in-person lawyer-to-lawyer consultations have been commonplace in the legal profession for decades, the rise of listservs and social media networks has caused many lawyers to seek advice from colleagues on the Internet.

In considering online lawyer-to-lawyer consultations, there are two major issues. Firstly, a lawyer must determine whether the jurisdiction in which he or she practices permits online lawyer-to-lawyer …

Reading The Prisoner's Letter: Attorney-Client Confidentiality In Inmate Correspondence, Gregory Sisk, Michelle King, Joy Nissen Beitzel, Bridget Duffus, Katherine Koehler

Journal of Criminal Law and Criminology

No one in our society has a more compelling need to communicate in complete confidence with a lawyer than a prisoner, when challenging a conviction as wrongful or prison conditions as unlawful. No one has a greater need to be able to engage in the uninhibited discussion of highly personal matters, tragic events, and official misconduct. A prisoner’s constitutional rights to freedom of speech, access to the courts, due process, and assistance of counsel are placed in unique jeopardy when a correctional system insists on prying into the substantive contents of legal mail.

In this Article, we explain the vital …

Attorney-Client Privilege And The Kovel Doctrine: Should Wisconsin Extend The Privilege To Communications With Third-Party Consultants?

Marquette Law Review

In today’s marketplace, the way that corporations conduct business is drastically changing, and lawyers are increasingly relying on third-party consultants, such as accountants or investment bankers, to facilitate them in providing accurate legal advice to corporate clients. Despite this reliance, whether the attorney–client privilege protects the communications between an attorney and a third-party consultant is often questioned. In United States v. Kovel, the Second Circuit found that the attorney–client privilege extended to communications between an attorney and a third-party consultant who acted as an interpreter. However, both federal and state courts have since split over the proper scope of the …

The Privilege Doctrines--Are They Just Another Discovery Tool Utilized By The Tobacco Industry To Conceal Damaging Information?, Christine Hatfield

Pace Law Review

This Comment will analyze the tobacco companies' use of the privilege doctrines to avoid litigation over the past thirty years, specifically focusing on the last fifteen years of litigation between this industry and its accusers. Part II of this Comment will discuss the pertinent discovery rules and the manner in which they are abused. Part III will examine the development, scope and limitations of the attorney-client privilege and work product doctrines, considering with particularity the corporate context and the applicability of the crime-fraud exception to these doctrines. Part IV will review the case law of the tobacco litigation, focusing on …

Review Of Privileged Documents In Trial And Deposition Preparation Of Witnesses In New York: When, If Ever, Will The Privilege Be Lost?, Michael J. Hutter

Pace Law Review

This article will examine New York’s refreshing recollection doctrine in the context of trial and deposition preparation of witnesses as to the consequences of the witness’s review of privileged writings. Initially, Part II will discuss Rule 612 of the Federal Rules of Evidence. The discussion will serve as the backdrop for the analysis of the above-mentioned issues under New York law. Part III will then examine the refreshing recollection doctrine as developed and applied to testifying witnesses at a trial or deposition by the New York courts. The examination will point out the doctrine’s key rules. Part IV discusses the …

The Impact Of Technological Developments On The Rules Of Attorney Ethics Regarding Attorney–Client Privilege, Confidentiality, And Social Media, Pamela A. Bresnahan, Lucian T. Pera

St. Mary's Journal on Legal Malpractice & Ethics

This article focuses on the development of the law of ethics and technology. Emphasis is placed on how technological developments have affected the rules and means by which lawyers practice law and certain ethical pitfalls that have developed hand-in-hand with technological advancements. Topics examined include: (1) the ways by which electronic communication has increased the potential for the attorney–client privilege to be waived and the resulting impact on the present-day practice of law; (2) the effect of social media on lawyers’ ethical obligations, including counseling clients regarding the client’s use of social media and the lawyer’s own use of social …

An Analysis Of Austin Lawyers Guild V. Securus Technologies, Inc.: The Constitutional And Ethical Implications Of Using Illegally Recorded Attorney–Client Telephone Conversations As Derivative Evidence, Christina Santos

St. Mary's Journal on Legal Malpractice & Ethics

For the justice system to operate effectively, privileged communications between an attorney and his or her client should be afforded the utmost and strictest protections. Intrusion by law enforcement upon these communications severely diminishes the confidence and candor needed in the attorney-client relationship. Although the United States Supreme Court recognizes prosecutorial immunity and generally leaves prosecutorial discipline to state bar authorities, the Court has long held that the attorney-client privilege is needed for attorneys to effectively advocate on behalf of their clients.

Austin Lawyers Guild v. Securus Technologies, Inc., a civil class-action lawsuit, is currently pending before the United …

In-House Counsel Beware!, Katrice Bridges Copeland

Fordham Urban Law Journal

No abstract provided.

The Battle To Define The Scope Of Attorney-Client Privilege In The Context Of Insurance Company Bad Faith: A Judicial War Zone, Steven Plitt, Joshua D. Rogers

The University of New Hampshire Law Review

[Excerpt] "The attorney-client privilege is the "oldest of the privileges for confidential communications known to the common law."' The privilege is "[d]eeply rooted in public policy," and plays a 'vital role' in the administration of justice." As such, the privilege is "traditionally deemed worthy of maximum legal protection"' and "it remains one of the most carefully guarded privileges and is not readily to be whittled down." The privilege has come under assault in the insurance bad faith context in recent decades resulting in a "whittling down" of the privilege for insurance companies as a target party. Over the past couple …

Use Of Expunged Records In Attorney-Disciplinary Proceedings, Roland D. Ramos

St. Mary's Journal on Legal Malpractice & Ethics

The Texas Supreme Court’s decision in In re State Bar of Texas should be modified. In In re State Bar of Texas, the Court allowed the use of a criminal defendant’s expunged records in a subsequent disciplinary proceeding against his attorney. Allowing the use of expunged records for any purpose violates Texas law. For example, under the Texas Code of Criminal Procedure, it is an offense to knowingly release or use expunged records for any reason, unless a court’s final expunction order permits the expunged records to be retained for future use or if a defendant waives his or …

The Attorney-Client Privilege As Applied To Corporate Clients, Elinore Marsh

Akron Law Review

After sixty-six years of struggle and controversy surrounding the application of the attorney-client privilege to corporate clients the United States Supreme Court has taken one step in laying many questions to rest. Upjohn Co. v. United States was accepted by the Court to resolve differences in the circuits as to how far the privilege extends horizontally and vertically within the corporate structure. This comment discusses the ramifications of extending the privilege to an entity which operates only through its agents, the history of the privilege, the effect of the Upjohn decision and the questions which remain as yet unsolved.

Commodity Futures Trading Commission V. Weintraub, Thomas R. Himmelspach

Akron Law Review

After presenting a general discussion of the attorney-client privilege, this casenote will discuss the facts underlying Weintraub and then review the rationales of the Seventh Circuit and the Supreme Court in their respective holdings. This casenote will discuss other arguments which have been raised in support of the trustee's authority over the privilege. The casenote will conclude with a discussion of other policy and precedent arguments which urge that the trustee should not be given this authority.

Electronic Data, Electronic Searching, Inadvertent Production Of Privileged Data: A Perfect Storm, Donald Wochna

Akron Law Review

This article suggests that the practical impact of treating electronic searching as an expert function is to permit attorneys to focus and strategize on the process of electronic searching rather than on the completeness of document production. In effect, electronic searching permits attorneys to quit focusing on finding documents and begin focusing on identifying electronic sources of information on which reside relevant documents that can be extracted by means of electronic searching protocols.

The Attorney-Client Privilege, Thomas E. Spahn

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Grand Jury Subpoena: Is It The Prosecutor's "Ultimate Weapon" Against Defense Attorneys And Their Clients?, Tara A. Flanagan

Pepperdine Law Review

No abstract provided.

Selective Disclosure: The Abrogation Of The Attorney-Client Privilege And The Work Product Doctrine, Zach Dostart

Pepperdine Law Review

No abstract provided.

Evidence - Privilege Law - How Arkansas's New Rule Of Evidence Codifies "Selective Waiver" Of The Attorney-Client Privilege And Work-Product Protection And An Argument For A More Moderate Approach, Jonathan D. Mcfadden

University of Arkansas at Little Rock Law Review

No abstract provided.

Preserving Attorney-Client Privilege In The Age Of Electronic Discovery, Anthony Francis Bruno

NYLS Law Review

No abstract provided.

The Ethical Mine Field: Corporate Internal Investigations And Individual Assertions Of The Attorney-Client Privilege, Lawton P. Cummings

West Virginia Law Review

No abstract provided.

How Can Japanese Corporations Protect Confidential Information In U.S. Courts?, Masamichi Yamamoto

Vanderbilt Journal of Transnational Law

U.S. courts have seen a significant increase in the number of lawsuits involving both U.S. and Japanese corporations. In deciding these cases, U.S. courts may have to choose how to apply the attorney-client privilege to in-house lawyers retained by corporations in Japan, where the legal system and discovery rules are fundamentally different from those of the United States. U.S. courts would most likely analyze these situations under the Remy-Martin/Minolta test and recognize the attorney-client privilege only for managers of legal departments in Japanese corporations, not for other non-bengoshi (non-licensed) in-house lawyers. This will change in the near future, however, when …

Conflicting Loyalties Facing In-House Counsel: Ethical Care And Feeding Of The Ravenous Multi-Headed Client The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., William E. Matthews, Robert M. Hoffman, Daniel C. Scott

St. Mary's Law Journal

Because of corporate scandals that shook the business world, legislative, corporate, and public fingers immediately pointed at corporate attorneys for allowing such egregious conduct to occur. In 1983, the American Bar Association (ABA) passed Model Rule 1.13, which promoted the entity theory. Under the entity theory, the organization is the in-house counsel’s only client; and the in-house counsel’s primary duty is to act in the best interest of the organization. Whether the issue is deciding to make an executive compensation disclosure in a proxy statement, taking on a dual role within the organization, acting in compliance with heightened professional responsibility …

Exploring Disqualification Of Counsel In Texas: A Balancing Of Competing Interests The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Rebecca Simmons, Manuel C. Maltos

St. Mary's Law Journal

Uncertainty over conduct which results in disqualification can be costly and the laws relating to disqualification may be widely known but their application is difficult. Rigid application of irrebuttable presumptions and imputation of knowledge may result in disqualification of a client’s chosen counsel. Even if an attorney succeeds in opposing a motion to disqualify, the resulting costs and delay may damage the attorney-client relationship more than if the attorney had simply declined the representation. Motions to disqualify usually arise from conflicts of interest involving former clients. The law of disqualification, in this instance, is well developed and largely based on …

Sarbanes-Oxley Act, Section 307 - The Price Of Accountability: How Will Section 307 Affect The Role Of The Corporate Attorney, Sara B. Smith

West Virginia Law Review

No abstract provided.

Potential Abrogation Of Attorney-Client Privilege In Oklahoma As A Result Of Hipaa, Alexander M. Bednar

Oklahoma Law Review

No abstract provided.

Legal And Professional Ethics: Protection Of Client Identity, Rebecca Wood Hunter

Oklahoma Law Review

No abstract provided.

Shoot Out At The Not-O.K. Corral Or Privileged Client Communications - Lost And Found In Texas., Walter W. Steele Jr.

St. Mary's Law Journal

Texas’s solutions to inadvertently disclosed privileged material are unworkable. Confidentiality of client information is a bedrock of the legal profession. Nonetheless, some confidential information invariably leaks out. The most common leak occurs when a lawyer inadvertently includes privileged material in boxes of documents produced in response to a legitimate discovery request. After the opposing lawyer finds the “hot documents” in the box, the problems begin. The Texas Supreme Court adopted what amounts to the reasonable precautions test in Granada Corp. v. First Court of Appeals. The cornerstone of the Granada holding is the involuntary nature of the production of the …

Has The Fog Cleared - Attorney Work Product And The Attorney-Client Privilege: Texas's Complete Transition Into Full Protection Of Attorney Work In The Corporate Context., Fred A. Simpson

St. Mary's Law Journal

The following discussion in this Article fills the gaps in the substantive rules surrounding the attorney work product doctrine and the attorney-client privilege, thereby encouraging practitioners to utilize these tools more freely. Initially, the attorney-client privilege contemplated application only to individuals. As the rule developed in the United States, however, the scope of the privilege broadened until it included corporations. Since 1982, Texas has provided for the attorney-client privilege in Texas Rule of Civil Evidence 503.149. Notably, the Rule defined client in such a way as to include a corporation. Unlike the attorney-client privilege, the work product doctrine developed much …

Attorney Referral For Medical Treatment: A Wolf In Disguise., Martin J. Phipps

St. Mary's Law Journal

Texas attorneys should be obligated to disclose whether they referred their client to a pre-selected physician. Plaintiff attorneys, however, have been allowed to withhold this information from the court arguing the information is privileged. The practice of using a pre-selected physician is unethical and unfairly prejudicial. If the attorney and physician have an agreement, the attorney is likely to send numerous clients to that specific physician in order to receive a discount. The physician in turn is likely to recommend medically unnecessary procedures in order to inflate money damages. Therefore, in order to prevent potential abuse between the attorney-physician relationship, …

Minnesota V. Philip Morris, Inc.: An Important Legal Ethics Message Which Neglects The Public Interest In Product Safety Research, Edward J. Imwinkelried, James R. Mccall

Kentucky Law Journal

No abstract provided.