S08T-Ex1a

Group A-1, Writing Assignment One; February 11, 2008

Question 1) Part (a)

In order to evaluate whether the explanation of confidentiality given by Lawyer A-2 accurately and completely described her obligations under the model rules, it is necessary to understand what the model rules require, permit, and prohibit.

First, Model Rule 1.6 is entitled “Confidentiality of Information” and sets forth the general rule that a lawyer is prohibited from revealing “information relating to the representation of a client.” MR 1.6(a). However, 1.6(a) provides three instances where disclosure is permitted, but not required; pursuant to Model Rule 1.6(a), a lawyer may reveal “information relating to the representation of a client” if: 1) the client has given informed consent, or 2) “the disclosure is implied authorized to carry out the representation”, or 3) the disclosure is allowed under MR 1.6(b). MR 1.6(a). Further, Model Rule 1.6(b) provides for six exceptions which permit, but do not require, a lawyer to reveal “information relating to the representation of a client” if the lawyer believes that disclosure is reasonably necessary to effectuate one of the six exceptions. MR 1.6(a); MR 1.6(b).

Second, Model Rule 3.3 also affects a lawyer’s duty of confidentiality. Model Rule 3.3(a)(3) prohibits a lawyer from “[offering] evidence that the lawyer knows to be false.” MR 3.3(a)(3). Further, pursuant to Model Rule 3.3(a)(3) and Model Rule 3.3(b), a lawyer is required to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal” if 1) “the lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer has come to know of its falsity” or 2) “in an adjudicatory proceeding” a lawyer knows that someone, including his or her client, “intends to engage, is engaging or has engaged in criminal or fraudulent conduct relating to the proceeding.” MR 3.3(a)(3); MR 3.3(b).

Lawyer A-2’s explanation of confidentiality, considered in light of the above-described provision of Model Rules 1.6 and 3.3, was inaccurate. At the outset, lawyer A-2 makes two misstatements. First, Lawyer A-2 tells Simon, “as your attorney anything that you say to me I am obligated to keep confidential.” A2:0:29-0:38. This statement is inaccurate, because, according to MR 1.6, Lawyer A-2 may, at her discretion, reveal information which a client tells her if she believes that disclosure is reasonably necessary to effectuate one of the six exceptions in MR 1.6(b). Next, at A2:0:38-0:48, Lawyer A-2 clarifies the scope of the confidentiality by saying “I can’t reveal anything that you tell me during the course of our professional relationship without your permission.” First, if the client understands that “course of our professional relationship” means “information relating to [your] representation”, then this statement is probably accurate to explain the scope of confidentiality. However, it is inaccurate for the same reasons that Lawyer A-2’s first statement is inaccurate; because the statements “anything that you say to me” and “anything that you tell me” were not qualified with reference to the exceptions of 1.6, they are inaccurate. A2:0:29-0:48.

Later, at A2:0:48-1:05, Lawyer A-2 seeks to correct these misstatements by explaining a few of the Model Rule’s exceptions to the general rule of confidentiality; lawyer A-2 qualifies her first statements, which suggest absolute confidentiality, by explaining several exceptions. First, she explains that “if I find out that you lie on the witness stand or you are planning to lie, I would have to report that kind of information.” A2:1:05-1:20. Model Rule 3.3(b) requires the Lawyer, upon gaining knowledge that material information the lawyer’s client offered to a tribunal was false, “take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” MR 3.3(a)(3). Technically, Lawyer A-2’s statement is not accurate for two reasons. First, Model Rules 3.3(a)(3) and 3.3(b) do not require that a lawyer disclose information to the tribunal in every case, they only require that the lawyer take some remedial measures. Second, Model Rule 3.3(a)(3) does not require that a lawyer take remedial measures in every case where false information may have been offered to a tribunal, only when that false information is material. However, Model Rule 3.3(b) will require remedial measures if Lawyer A-2 learns that her client “intends to engage in criminal or fraudulent conduct relating to the proceeding.” Therefore, MR 3.3 will require remedial measures whether or not the information given to the tribunal will be material, if it will be given under oath. Though her explanation here is not an accurate statement of what the Model Rules require and permit, if Lawyer A-2 has previously decided that, in all situations where she discovers that any false statements have been made or are going to be made to a tribunal, whether or not those statements are material, she will report that to the tribunal without considering other remedial alternatives, then, her statement here will be an accurate statement of what she will do; though, this strategy will be in excess of what the Model Rules require.

Next, Lawyer A-2 explains “[o]r, if you tell me that you are planning to commit some kind of crime, I’d also be obligated to report that to the authorities.” A2:1:20-1:29. Technically, this is also a misstatement of Model Rule 3.3(b) for two reasons. Model Rule 3.3(b), the only related rule which requires attorney action, does not require reporting possible future criminal activities to the authorities. Model Rule 3.3(b) only requires that a lawyer “take reasonable remedial measures” when that lawyer gains knowledge that someone “intends to engage, is engaging in, or has engaged in criminal or fraudulent conduct related to the proceeding.” MR 3.3(b). Reasonable remedial measures may not include reporting the activity to the authorities. Further, because the 1.6(b) exceptions are discretionary, an obligation to report to the authorities would not arise under MR 1.6(b). Second, MR 3.3(b) only requires remedial measures in the course of a adjudicatory proceeding where the future “criminal or fraudulent conduct“ is “related to the proceeding.” MR 3.3(b).

At A2:1:29-1:54, Lawyer A-2 explains the discretionary exception to the general confidentiality rule contained in Model Rule 1.6(b)(5) by saying “if somebody brings a lawsuit against me concerning my representation of you, or if I need to collect my fees from you, I’d be able to disclosure some of the things that you tell me, but it would only be what I feel is absolutely necessary to that defense of myself.” Because Lawyer A-2 may reveal information that is not necessary to her defense if it is related to establishing a claim “on behalf of the lawyer in a controversy between the lawyer and the client”, this statement is inaccurate. MR 1.6(b)(5).

Lawyer A-2’s explanation of confidentiality, considered in light of the above-described provision of Model Rules 1.6 and 3.3, was incomplete. Though Lawyer A-2 suggested that she may reveal information “related to the representation of” Simon if Simon gives permission or one of the explained exceptions applies, her explanation was largely incomplete. MR 1.6(a); A2:0:38-0:42. Lawyer A-2 did not explain explain the following discretionary exceptions: MR 1.6(b)(1), MR 1.6(b)(2), MR 1.6(b)(3), MR 1.6(b)(4), MR 1.6(b)(6). At A2:1:29-1:54, Lawyer A2 explains some of MR 1.6(b)(5). However, her explanation is incomplete to the extent that she failed to explain that she may disclose to establish claims as well as defenses, as described partially above. MR 1.6(b)(5). Though Lawyer A-2 suggested knowledge that Simon is “planning to lie” or “planning to commit some kind of crime” would create a duty to disclose, this explanation was incomplete in light of MR 1.6(b)(2), MR 3.3(a)(3) and MR 3.3(b). First, MR 1.6(b)(2) is discretionary and does not create a duty. Next, MR 3.3(a)(3) and MR 3.3(b) do not create duties to “report that [information] to [the] authorities.” A2:1:05-1:29. Further, MR 3.3(b) only creates a duty when Lawyer A-2 represents a client in an adjudicatory proceeding and the criminal activity relates to that proceeding. MR 3.3(b).

Lawyer A-2’s explanation of confidentiality was likely comprehensible to the client for

three reasons. First, at the end of the section on confidentiality, Lawyer A-2 asks the client “[d]o you understand?” A2:2:09-2:10. Simon responds, “I understand.” A2:2:10-2:11. Further, at end of the interview, Lawyer A-2 asks Simon whether she has any questions. A2:8:07-8.08. Simon responds that she has no further questions. Second, when describing some of the confidentiality issues, Lawyer A-2 used layman’s terms. Third, finally, Lawyer A-2 paused when describing some of the confidentiality issues; lawyer A-2 paused to judge whether Simon understood and to provide Simon an opportunity to interject if she did not understand.

Part (b) compare the A1 and A2 interviews

A comparison of Lawyer A-1’s explanation and Lawyer A-2’s explanation reveals a genuine conflict between accurately and completely explaining confidentiality and fostering client trust. Though Lawyer A-2’s explanation of confidentiality was somewhat inaccurate and

incomplete, it was much more complete than Lawyer A-1’s explanation of confidentiality.

Lawyer A-1’s explanation of confidentiality begins at around A1:7:29. It lasts only forty-one seconds. Lawyer A-1 does not explain most of the exceptions within Model Rules 1.6 and 3.3; she only says that “there are a couple of reasons” that she could disclose client information and that those reasons “pretty much surround whether or not” Simon consents to disclosure. A1:7:29 –7:47. She goes on to quickly mention exceptions contained in Model Rules 1.6(b)(1), 1.6(b)(2), 1.6(b)(3), and 3.3(b). A1:7:47-8:00. Her entire explanation of these exceptions lasts under twenty seconds. At the end, she reiterates her opening statement about confidentiality, “anything that happens in here stays in here.” A1:8:04-8:10. In comparison, Lawyer A-2’s explanation of confidentiality lasts about two minutes. Her explanation details several of the exceptions contained within Model Rules 1.6 and 3.3, as discussed above. Therefore, Lawyer A-2’s explanation makes it fairly clear that the confidentiality is not absolute. However, Lawyer A-1 explanations suggest a more absolute confidentiality, constrained only by the scope of the professional relationship and some limited exceptions when she is “pretty sure” do not apply in Simon’s case. A1:8:00-8:04.

Lawyer A-1’s explanation probably encouraged Simon to freely offer information concerning his case. Because she did not explain the exceptions, the client might believe that the confidentiality is truly absolute, and therefore, be more inclined to trust the lawyer. Though Lawyer A-1’s explanation of confidentiality probably encouraged Simon to trust her, it was quick and somewhat incomplete.

Lawyer A-2’s explanation, which, though incomplete, set forth some of the exceptions, probably did not encourage Simon to freely offer information concerning her case. Because she detailed several exceptions (those relating to 1.6(a), 1.6(b)(5), and 3.3(a)(3) and 3.3(b)), Lawyer A-2’s client was probably less likely to trust that her statements would remain confidential.

Part (c) how the lawyer in your own subgroup did or did not conduct the interview so as to learn the client's "story."

Several aspects of Lawyer A-1’s interview were conducive to learning the client’s story. First, at the beginning of the interview, Lawyer A-1 gave some topic control to Simon by saying “[g]ive me a rundown of the events.” A1:0:26:0:27. This method was very effective in giving Simon an opportunity to tell his story. Further, at several times during the interview, Lawyer A-1 stopped and asked Simon whether there was “anything else you’d like to tell me?” A1: 5:45-5:47; 8:21-8:22. This effectively gave Simon a chance to continue his story and to ask questions.

As the interview progressed, Lawyer A-1 conducted the interview in a way that did not help her learn Simon’s story. At about A1:1:00, Lawyer A-1 began to ask a series of pointed, interrogation style questions. Her first topic concerns the robbery. A1:1:00-2:07. Her next topic is Simon’s background. A1:2:07-3:00. Next, she asks various questions about Gordon’s past. A1:3:07-4:16. Throughout these topics, she used a pointed, interrogation style and gave Simon few chances to interject. At A1:2:48-2:49 she apologized for the interrogation style of questioning, but continued it through A1:4:16, reviving it later in the interview. This method is problematic because, though she may have developed a theory of the case, other important defenses or strategies may remain undeveloped if more time for open discussion is not allowed. Further, not providing sufficient open discussion time may lead to a dissatisfied client who feels they were not allowed to participate in the process, regardless of the result. Tom Tyler, Client Perceptions of Litigation; What Counts: Process or Results?, Trial Magazine (July 1988).

Question 2)

It would be more effective to explain confidentiality at the outset of the interview, instead of after the majority of the interview was completed. A1:7:29-8:10. As the client, explaining confidentiality after I responded “No” to “[i]s there anything else you’d like to tell me?”, A1: 5:45-5:47, and then re-asking the same question after the explanation, reveals that my attorney thinks that I am lying. Further, explaining confidentiality at the outset of an initial client interview may foster trust in the Lawyer from the outset. A client that does not understand confidentiality and therefore lies to his lawyer, is understandably reluctant to tell the truth and change his story later. Establishing trust initially may help avoid that problem.