Attorney-Client Relationship (Chap. 2 PDF)

PART ONE THE ATTORNEY-​CLIENT RELATIONSHIP II Defining the Attorney-​Client Relationship In the beginning is the client. But also before the beginning and after the end. Which is another way of saying that some rules apply even before a person formally becomes a client (if she ever does) and continu...

PART ONE THE ATTORNEY-​CLIENT RELATIONSHIP II Defining the Attorney-​Client Relationship In the beginning is the client. But also before the beginning and after the end. Which is another way of saying that some rules apply even before a person formally becomes a client (if she ever does) and continue long after the work is done. Lawyers love to quote Henry Brougham, the great British barrister and Lord Chancellor of the nineteenth century, who said that “an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.”* How professionally liberating. One person. In all the world. But like many grand pronouncements, it is not entirely true. Lawyers also have obligations to courts, adversaries, partners, and associates. Still, duties to clients are the main concern of ethical and legal rules governing lawyers and will be ours. Whether these duties, in addition to being more numerous, should always be viewed as more important than preventing harm to others, the demands of “justice,” or the “public interest” —​and if so, when —​are questions for debate. Indeed, debate is inevitable. Debate is more likely in law schools and bar committees than in law offices. In the tumult of daily practice, lawyers have brief time to ponder The Big Questions. Many lawyers would agree with a prominent Connecticut lawyer’s response to me when, recently admitted to the bar, I asked if he did public interest cases. It probably sounded like a challenge. It probably was. “I serve the public interest by fighting for the private interests of each of my clients, one at a time,” he instructed, slowly emphasizing each word. Is he right? Lord Brougham would say yes. Rejecting any qualifiers, Brougham went on to say that the “hazards and costs to other persons” are of no concern to the lawyer, who “must not regard the alarm, the torments, the destruction which he may bring upon others.... [H]‌e must go on reckless of the consequences, though it should be his unhappy fate to involve his * Trial of Queen Caroline 8 (J. Nightingale ed., 1821). 19 20 II. Defining the Attorney-Client Relationship country in confusion.”* No ambiguity there. Is that what legal ethics rules (should) require, tolerate, or encourage? Not exactly. Lawyers have a tendency to describe their commitment to clients with a fervor generally associated with speakers at revival meetings, Fourth of July orators, and deans at alumni events. If nothing else, it plays well; but, to be fair, the passion is often truly felt. Passion, however, is not a reliable guide for conduct. We do have rules, after all, and some subordinate a client’s interests to other interests and values. Sometimes, in fact, the clash is between the interests of two (or more) current or former clients. A further word about Lord Brougham (who has an encore in ­chapter 7). The Lord made his comments while representing the Queen of England against a criminal charge of adultery. We might view his description of the advocate’s role as a threat to expose the King. If so, it worked.† A. IS THERE A CLIENT HERE? A threshold question that recurs throughout this book is: What makes someone a client? That question is answered by case law, not the Rules. But much can turn on the answer, such as whether a lawyer has a conflict that restricts his or her practice and the practice of colleagues, whether a lawyer may be liable in malpractice or subject to discipline, and whether a person’s communications with a lawyer are confidential or privileged. For lovers of ambiguity, the question (is or was X a client?) will often lack an easy answer. Lawyers do love ambiguity. You can see why. Ambiguity creates contests that require the assistance of counsel. Much of what lawyers do in litigation is find ambiguity when clarity disserves their clients. In transactional matters, lawyers avoid ambiguities that may harm their clients, but not those that a client may later exploit to advantage. Lawyers hate ambiguity that creates dilemmas for lawyers, however, especially if guessing wrong can be costly. But as lawyers often tell clients whose personal or commercial lives are governed by complex rules, the answer to the question “Can I do that?” may be “Not clear. Arguments exist pro and con. What’s your risk tolerance?” The same goes for lawyers. The vast majority of lawyer-​client relationships are still formed by contracts, leaving no doubt. The relationship can also be implied. An attorney-​client relationship is formed when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and... (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services. * Id. 333 † For a riveting account of the trial and of Lord Brougham’s prowess as a lawyer, see Jane Robins, The Trial of Queen Caroline (Free Press 2006). A. Is There a Client Here? 21 Atty. Grievance Comm’n. v. Kreamer, 946 A.2d 500 (Md. 2008) (quoting the Restatement). Court assignment of lawyers to represent indigent criminal defendants is the other common route to a professional relationship. But that’s not the end of it. “The client is no longer simply the person who walks into a law office,” Judge Arthur Sprecher presciently wrote in 1978 in Westinghouse Electric Corp. v. Kerr-​McGee Corp., 580 F.2d 1311 (7th Cir. 1978), capturing in a short, understated sentence an emerging trend whose reality has since become commonplace. So, for example, in Togstad (­chapter 13A), a lawyer had a professional relationship with (and malpractice liability to) Mrs. Togstad although he declined to accept her case. Mr. Togstad was his client, too, although the two apparently never met. As we shall see in the material on conflicts of interest, companies that are members of trade groups may be deemed clients of lawyers who represent the groups, at least for certain purposes. Rule 1.18 protects persons who consult lawyers but do not ultimately retain them. Courts are alert to what persons claiming to be clients might reasonably have believed, especially so if they have given the lawyer confidential information. In Analytica, Inc. v. NPD Research (­chapter 6A), a company wanted to give an employee stock as a reward for good service. The company disclosed financial information to a law firm the employee had hired to advise on how to minimize taxes from the transfer. On a motion to disqualify the law firm from later suing the company in a matter in which the financial information could be used against it, the court said the company was a former client even though it had not itself retained the firm. Duties in the professional relationship are, as we shall see, based in part on the law of agency. Even when a client-​lawyer relationship is established, it will have a finite scope, as do principal-​agent relationships generally. The Rules and cases use the word “matter” to describe the scope of a lawyer’s retainer and therefore the extent of her authority and duties. So, for example, when the Brobeck firm was retained to file a certiorari petition for Telex (see ­chapter 4A), it had no duty to advise Telex on its personnel policies. The matter was the petition, nothing else. The Telex retainer agreement was detailed, but often the scope of the relationship will be unclear. If a lawyer is retained to bring a negligence claim following a car crash, she has no responsibility for the client’s copyright claim. But must the lawyer also protect the client’s no-​fault insurance benefits arising from the crash, even though that service was never mentioned? The client may look at the retainer holistically, while the lawyer may define it by reference to a particular service. So the client thinks, “This lawyer will help me get the money I’m owed because of this accident,” while the lawyer thinks, “I’m retained only to sue the other driver for negligence, not to get no-​fault payments from the client’s own insurer.” Courts expect lawyers to be sensitive to, and to clarify, any ambiguity. The nature of the clarification will depend on the client’s sophistication. 22 II. Defining the Attorney-Client Relationship The conventional image of the client-​lawyer relationship posits two people who have agreed that one will provide a defined service to the other for a fee. However, no formality or fee is necessary, nor must the participants be limited to two. (Sometimes, however, the agreement must be in writing. See ­chapter 4B.) There may be several or many lawyers and several or many clients. Nor must the client be a person. Corporations, trade associations, labor unions, estates, and governments may all be clients. Another type of client is the class. “The responsibility of class counsel to absent class members whose control over their attorneys is limited does not permit even the appearance of divided loyalties of counsel. In addition, class counsel’s fiduciary duty is to the class as a whole and it includes reporting potential conflict issues.” Rodriguez v. West Publ’g Corp., 563 F.3d 948 (9th Cir. 2009). Some courts recognize a fiduciary duty to members of a “putative” (not yet certified) class. “Beyond their ethical obligations to their clients, class attorneys, purporting to represent a class, also owe the entire class a fiduciary duty once the class complaint is filed.” In re Gen. Motors Corp. Pick-​Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995); Fla. Bar v. Adorno, 60 So. 3d 1016 (Fla. 2011) (even if Adorno had no attorney-​ client relationship with putative class members, he violated his fiduciary duty to them when he settled the action for named plaintiffs only). B. WHAT DO LAWYERS OWE CLIENTS? 1. Competence About half of the practice of a decent lawyer is telling would-​be clients that they are damned fools and should stop.* —​Elihu Root, U.S. Secretary of State (1905-​1909) A Washington, D.C. judge declared a mistrial in a murder case Friday, saying he was “astonished” at the performance of the defense lawyer who confessed to jurors he’d never tried a case before. —​ABA Journal, April 4, 2011 The very first rule in the Model Rules requires lawyers to provide clients with “competent” representation, defined to require “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.1. Incompetence has many parents: ignorance, inexperience, neglect, lack of time, and high volume. * Quoted, inter alia, in In re Haggerty, 542 B.R. 849 (Bankr. N.D. Ind. 2015); Triplett v. Colvin, 2013 WL 6169562 (N.D. Ill. 2013); and Andrus v. Dep’t. of Transp., 117 P.3d 1152 (Wash. Ct. App. 2005). The message here is that sometimes it is wise to tell a client to forget about it, for their own good and yours. Many clients don’t want to hear “forget about it,” and many lawyers don’t want to say “forget about it” because it turns away business. That’s no excuse. B. What Do Lawyers Owe Clients? 23 The Florida Supreme Court has ruled that public defenders may withdraw from matters if their case volume threatens effective representation. “[W]‌ hen understaffing creates a situation where indigent [defendants] are not afforded effective assistance of counsel, the public defender may be allowed to withdraw.” Pub. Defender v. State, 115 So. 3d 261 (Fla. 2013) (rejecting legislation that prohibited granting permission to withdraw on this basis). A lawyer has a duty to decline more work than he can competently handle, but that might not be easy for junior lawyers. If the person assigning the work is a lawyer, she has a duty not to assign more work than a subordinate can perform competently. ABA Opinion 06-​441 makes the point: If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyer should request that the court not make any new appointments.... [L]‌awyer supervisors must, working closely with the lawyers they supervise, monitor the workload of the supervised lawyers to ensure that the workloads do not exceed a level that may be competently handled by the individual lawyers. Incompetent work can lead to malpractice liability (­chapter 13A). It rarely leads to discipline. (Contrast neglect, where a lawyer does no work at all and which can and does lead to discipline.) But it does happen. Although Joe Pegram had no criminal law experience, he accepted a felony case and charged $20,000 for representation through trial. He affiliated with experienced co-​counsel, but continued alone after that lawyer dropped out and even though he knew he would be unable to try the case. He was hoping to negotiate a plea, but could not. So he withdrew on the first day of trial. He was reprimanded for taking work he was not competent to handle. In re Pegram, 167 So.3d 230 (Miss. 2014). Stephen Barns accepted a job as a company’s chief legal officer, but later admitted that “he had never organized a corporate structure for anyone other than himself” and that he had “entered an area of law that he knew nothing about.” Columbus Bar Ass’n v. Barns, 123 N.E.3d 922 (Ohio 2018) (public reprimand). If suspicions about a lawyer’s competence persist, you might expect these to deter new clients. After all, poorly reviewed movies discourage ticket buyers. But this assumes knowledgeable law consumers and available information. Sophisticated buyers of legal services, like big companies that retain lawyers with the advice of in-​house lawyers, can shop for quality and monitor performance. Not so those who rarely hire lawyers. Consumers may do more research when buying a car than when hiring a lawyer because more information is easily available about cars. The market is imperfect. The Sixth Amendment has an additional competence requirement. It guarantees the effective assistance of counsel in criminal cases. See ­chapter 13E. Each state can choose its own definition of competence for malpractice and discipline, but the Sixth Amendment guarantee is the same nationwide. 24 II. Defining the Attorney-Client Relationship Malpractice, discipline, and the Sixth Amendment are enforced in retrospect by inspecting what the lawyer did or failed to do. We also attempt to reduce the risk of incompetence prospectively by imposing education and examination requirements for admission to the bar. See ­chapter 12A. Competence Includes Judgment Among the most important qualities a lawyer can have is good judgment, which is part of competence. Malpractice includes the failure to exercise reasonable judgment. See, e.g., Williamson v. Bratt, 2010 WL 4102999 (Mich. Ct. App. 2010) (“An attorney owes a duty to exercise reasonable skill, care, discretion, and judgment in representing a client.”). Judgment distinguishes what should be done from what can be done. I sometimes think of it as learned intuition, which requires years of experience. Problem-​solving in law school classes, especially clinics, can begin to develop judgment. Students, preferably in small groups, can talk through options and risks, including those that might not have occurred to each of them alone, and collectively identify the best response. But developing judgment takes more than the limited opportunities law schools can offer. It requires time in practice. Watching seasoned lawyers helps. They teach by example whether they know it or not. 2. Confidentiality The Case of the Innocent Lifer* In March 2008, CBS News correspondent Bob Simon reported this story on 60 Minutes: Alton Logan was convicted of killing a security guard at a McDonald’s in Chicago in 1982. Police arrested him after a tip and got three eyewitnesses to identify him. Logan, his mother and brother all testified he was at home asleep when the murder occurred. But a jury found him guilty of first degree murder.... Logan, who maintains he didn’t commit the murder, thought they were “crazy” when he was arrested for the crime. Attorneys Dale Coventry and Jamie Kunz knew Logan had good reason to think that, because they knew he was innocent. And they knew that because their client, Andrew Wilson, who they were defending for killing two policemen, confessed to them that he had also killed the security guard at McDonald’s —​the crime Logan was charged with. “We got information that Wilson was the guy and not Alton Logan. So we went over to the jail immediately almost and said, ‘Is that true? Was * This is the first of this book’s many problems. Mostly, problems precede the materials that will then help you solve the problems. The advantage is that you can have the problems in mind as you read the text. B. What Do Lawyers Owe Clients? that you?’ And he said, ‘Yep it was me,’​” Kunz recalled. “He just about hugged himself and smiled. I mean he was kind of gleeful about it. It was a very strange response,” Kunz said, recalling how Wilson had reacted. “How did you interpret that response?” Simon asked. “That it was true and that he was tickled pink,” Kunz said. 1. Wilson gave his lawyers written authority to reveal his guilt after he died. He lived 26 years. All the while Logan was imprisoned. After his release, Logan sued Chicago and settled for $10.25 million. 2. Under the Model Rules (which were not then the Illinois rules), what options and obligations would the lawyers have had when Wilson confessed to them? 3. Logan’s jury split 10 to 2 in favor of execution. Unanimity was required for a death sentence, so he was sentenced to life. Would it change your answer if Logan were on death row? 4. What should a jurisdiction’s rule say on these facts? Should there be an express exception permitting disclosure to prevent an unjust incarceration? Requiring disclosure? Should the length of a prison sentence matter? 5. What might have happened to Wilson if the lawyers had disclosed Wilson’s confession to Logan’s lawyer and the prosecutor? How does that affect your analysis? “Lori Is on Opioids” “I have a longtime client I’ll call Roland. He runs a family company, founded by his great-​grandfather. He has two children. The older one is 19. I’ll call her Lori. She’s a sophomore at a top university. She got arrested for drunk driving. She crossed the center line and sideswiped an oncoming car. She had been drinking. This was her second driving under the influence charge in six months. She faced the loss of her license. “Lori called her father to help get a lawyer. Roland called me. We have an office in the city where Lori is at school and one of my partners, Neera, is a defense lawyer. In fact, she was once the local U.S. Attorney. This is not the kind of case Neera handles, but Roland said he’d feel better if we took it so we did. He’s paying the fee. “Last night Neera called me with some hard news. ‘In addition to being intoxicated,’ Neera said, ‘Lori was on opioids. I’m not sure which ones. The cops missed it because the alcohol masked the effects.’ Lori told Neera she runs track. She started with a prescription after a bad fall, and didn’t stop. “Neera said, ‘Dorothy, you better tell her parents. I don’t think she’ll kick this without help, although she said she will. I don’t think she realizes the risk. I didn’t ask how she got her supply. This could lead to a disaster for Lori and her family.’ 25 26 II. Defining the Attorney-Client Relationship “I’ve since learned that opioids cause more than 48,000 deaths in the U.S. yearly, a number that has been rising steadily. One medical site says: ‘Opioids can make your brain and body believe the drug is necessary for survival. As you learn to tolerate the dose you’ve been prescribed, you may find that you need even more medication to relieve the pain or achieve well-​being, which can lead to dependency. Addiction takes hold of our brains in several ways —​and is far more complex and less forgiving than many people realize.’ “When I next talk to Roland about his company’s legal matters, he may ask how it’s going with Lori’s case. What can and should I tell him about the opioids?” How Does Your Garden™ Grow? “We have long represented Your Garden™, a family company that sells gardening products. Six months ago we helped it apply for a substantial increase in its bank line of credit, for which it had to submit certified profit and loss statements for the last two fiscal years, which it did. We negotiated the loan terms with the bank and submitted the statements on Your Garden’s behalf. The bank approved the increase. Last week we got information suggesting that the statements were materially false. We confronted Emmett Blank, the CEO, and he admitted that the statements were indeed false. He said he needed the cash to get through a rough patch caused by unexpected expenses and the failure of sales projections to materialize. He said things were looking better now although he was not yet out of the woods. “Our firm’s work helped Your Garden defraud the bank, although of course we did not then know it. Some of us want to alert the bank if Emmett won’t. Others think we cannot because what we know is privileged and confidential. Yet others just want to wait, hoping that the market will rebound and Your Garden will make its payments. Advise us.” Short though it is, and decades old, the following valuable opinion surfaces themes that appear in this chapter and beyond it. They are addressed in the note following. PEREZ v. KIRK & CARRIGAN 822 S.W.2d 261 (Tex. App. 1991) Dorsey, Justice. Ruben Perez appeals a summary judgment rendered against him on his causes of action against the law firm of Kirk & Carrigan, and against Dana Kirk and Steve Carrigan individually (henceforth all three will be collectively referred to as “Kirk & Carrigan”). We reverse the summary judgment and remand this case for trial. B. What Do Lawyers Owe Clients? 27 The present suit arises from a school bus accident on September 21, 1989, in Alton, Texas. Ruben Perez was employed by Valley Coca-​Cola Bottling Company as a truck driver. On the morning of the accident, Perez attempted to stop his truck at a stop sign along his route, but the truck’s brakes failed to stop the truck, which collided with the school bus. The loaded bus was knocked into a pond and 21 children died. Perez suffered injuries from the collision and was taken to a local hospital to be treated. The day after the accident, Kirk & Carrigan, lawyers who had been hired to represent Valley Coca-​Cola Bottling Company, visited Perez in the hospital for the purpose of taking his statement. Perez claims that the lawyers told him they were his lawyers too and that anything he told them would be kept confidential. With this understanding, Perez gave them a sworn statement concerning the accident. However, after taking Perez’ statement, Kirk & Carrigan had no further contact with him. Instead, Kirk & Carrigan made arrangements for criminal defense attorney Joseph Connors to represent Perez. Connors was paid by National Union Fire Insurance Company which covered both Valley Coca-​Cola and Perez for liability in connection with the accident. Some time after Connors began representing Perez, Kirk & Carrigan, without telling either Perez or Connors, turned Perez’ statement over to the Hildalgo County District Attorney’s Office. Kirk & Carrigan contend that Perez’ statement was provided in a good faith attempt to fully comply with a request of the district attorney’s office and under threat of subpoena if they did not voluntarily comply. Partly on the basis of this statement, the district attorney was able to obtain a grand jury indictment of Perez for involuntary manslaughter for his actions in connection with the accident.... By his sole point of error, Perez complains simply that the trial court erred in granting Kirk & Carrigan’s motion for summary judgment.... With regard to Perez’ cause of action for breach of the fiduciary duty of good faith and fair dealing, Kirk & Carrigan contend that no attorney-​client relationship existed and no fiduciary duty arose, because Perez never sought legal advice from them. An agreement to form an attorney-​client relationship may be implied from the conduct of the parties. Moreover, the relationship does not depend upon the payment of a fee, but may exist as a result of rendering services gratuitously.4 In the present case, viewing the summary judgment evidence in the light most favorable to Perez, Kirk & Carrigan told him that, in addition to representing Valley Coca-​Cola, they were also Perez’ lawyers and that they were going to help him. Perez did not challenge this assertion, and he cooperated with the lawyers in giving his statement to them, even though he did 4. An attorney’s fiduciary responsibilities may arise even during preliminary consultations regarding the attorney’s possible retention if the attorney enters into discussion of the client’s legal problems with a view toward undertaking representation. 28 II. Defining the Attorney-Client Relationship not offer, nor was he asked, to pay the lawyers’ fees. We hold that this was sufficient to imply the creation of an attorney-​client relationship at the time Perez gave his statement to Kirk & Carrigan. The existence of this relationship encouraged Perez to trust Kirk & Carrigan and gave rise to a corresponding duty on the part of the attorneys not to violate this position of trust. Accordingly, the relation between attorney and client is highly fiduciary in nature, and their dealings with each other are subject to the same scrutiny as a transaction between trustee and beneficiary. Specifically, the relationship between attorney and client has been described as one of uberrima fides, which means, “most abundant good faith,” requiring absolute and perfect candor, openness and honesty, and the absence of any concealment or deception. In addition, because of the openness and candor within this relationship, certain communications between attorney and client are privileged from disclosure in either civil or criminal proceedings....5 There is evidence that Kirk & Carrigan represented to Perez that his statement would be kept confidential. Later, however, without telling either Perez or his subsequently-​retained criminal defense attorney, Kirk & Carrigan voluntarily disclosed Perez’ statement to the district attorney. Perez asserts in the present suit that this course of conduct amounted, among other things, to a breach of fiduciary duty. Kirk & Carrigan seek to avoid this claim of breach, on the ground that the attorney-​client privilege did not apply to the present statement, because unnecessary third parties were present at the time it was given. However, whether or not the... attorney-​client privilege extended to Perez’ statement, Kirk & Carrigan initially obtained the statement from Perez on the understanding that it would be kept confidential. Thus, regardless of whether from an evidentiary standpoint the privilege attached, Kirk & Carrigan breached their fiduciary duty to Perez either by wrongfully disclosing a privileged statement or by wrongfully representing that an unprivileged statement would be kept confidential. Either characterization shows a clear lack of honesty toward, and a deception of, Perez by his own attorneys regarding the degree of confidentiality with which they intended to treat the statement.... In addition, however, even assuming a breach of fiduciary duty, Kirk & Carrigan also contend that summary judgment may be sustained on the ground that Perez could show no damages resulting from the breach. Kirk & Carrigan contend that their dissemination of Perez’ statement could not have caused him any damages in the way of emotional distress, because the 5. Disclosure of confidential communications by an attorney, whether privileged or not under the rules of evidence, is generally prohibited by the disciplinary rules governing attorneys’ conduct in Texas. [The court cited the Texas equivalent to Rule 1.6.] In addition, the general rule is that confidential information received during the course of any fiduciary relationship may not be used or disclosed to the detriment of the one from whom the information is obtained. B. What Do Lawyers Owe Clients? 29 statement merely revealed Perez’ own version of what happened. We do not agree. Mental anguish consists of the emotional response of the plaintiff caused by the tortfeasor’s conduct. It includes, among other things, the mental sensation of pain resulting from public humiliation. Regardless of the fact that Perez himself made the present statement, he did not necessarily intend it to be a public response as Kirk & Carrigan contend, but only a private and confidential discussion with his attorneys. Perez alleged that the publicity caused by his indictment, resulting from the revelation of the statement to the district attorney in breach of that confidentiality, caused him to suffer emotional distress and mental anguish. We hold that Perez has made a valid claim for such damages.... [Reversed]     Perez inspired a fine novel, The Sweet Hereafter by Russell Banks. An equally fine movie, directed by Atom Egoyan, followed. The main character is a lawyer who wants to represent the families of the children on the school bus. Unlike some lawyer novels, the portrayals ring true. In May 1993, more than three and a half years after the accident, Perez was tried on 21 counts of involuntary manslaughter. The jury acquitted him on all counts after less than four hours of deliberation. Coca-​Cola paid the survivors and the families of the victims $133 million to settle liability claims. The bus company, whose bus had windows that were difficult to open and only one emergency exit, settled for $23 million. Maggie Rivas, Dallas Morning News, May 6, 1993. It didn’t matter that Kirk & Carrigan had only a preliminary meeting with Perez. The attorney-​client privilege and the duty of confidentiality (each of which is explained below) protect information gained from a potential client even if no retention ensues. See Model Rule 1.18 and Disciplinary Counsel v. Cicero, 982 N.E.2d 650 (Ohio 2012) (one-​year suspension of lawyer who disclosed confidential information of potential client). Why protect a lawyer’s potential clients, i.e., those who don’t become actual clients either because the lawyer declines the matter or the potential client hires someone else? Here are four questions Perez raises: What was the legal basis for Perez’s claim? That is, what law gave him a right to sue for damages? As we will see later, the Rules do not create a right to sue, although a violation of the Rules may be admissible as some evidence of a violation of a legal duty. Assume Kirk & Carrigan had said only that “the company hired us because of the accident.” You represent Perez. What do you argue? How could the lawyers have protected themselves, if at all? See Rule 4.3. How can the court characterize Perez’s communications with Kirk & Carrigan as “confidential” if the presence of a third person in the hospital room would have destroyed the attorney-​client privilege? 30 II. Defining the Attorney-Client Relationship Civil claims against lawyers for improper disclosure of a client’s confidential information are rare, but the doctrinal basis for them is clear. Rebecca Parkinson sued her former divorce lawyer James Bevis. She alleged that he had shared her confidential communications with the lawyer for her former husband. The Idaho Supreme Court held that Parkinson’s complaint stated a valid claim for breach of fiduciary duty for which the remedy could be disgorgement of some or all of the fees Parkinson paid Bevis. Parkinson v. Bevis, 448 P.3d 1027 (Idaho 2019). Bye, a lawyer, had represented Thiery in a personal injury action. Before the matter ended, Bye asked Thiery if his nurse-​investigator could use Thiery’s medical records to teach a class at a technical college. Bye said Thiery would be paid $500 and that all identifying information would be removed. Thiery agreed. Thiery then claimed that Bye had failed to remove some identifying information and sued for malpractice. Citing Wisconsin’s version of Rule 1.6, the agreement, and the law of agency, the court reversed summary judgment for Bye. Bye had an obligation to maintain Thiery’s confidential information during and after the relationship. Nor did Thiery need an expert witness to prove her case. “A layperson would have little difficulty understanding the duty Bye accepted in his letter to Thiery or determining whether Bye’s failure to assure the redaction was completed was a breach of his obligation to his client. We have concluded as a matter of law that Bye owed a duty to maintain the confidentiality of Thiery’s records.” Thiery v. Bye, 597 N.W.2d 449 (Wis. Ct. App. 1999). The most notorious recent instance of unauthorized disclosure of a confidence may be the outing of Harry Potter author J.K. Rowling as the author of The Cuckoo’s Calling, written under the pseudonym Robert Galbraith. Chris Gossage, a partner at Russells, Rowling’s U.K. law firm, disclosed her identity to a friend. The friend then revealed the pseudonym to a journalist via Twitter and the story appeared in the Sunday Times. Russells then informed Rowling’s agent that its own lawyer had been the source of the revelation. Rowling sued and the firm made a “substantial” charitable donation to settle. Matilda Battersby, The Independent, July 31, 2013. Following disclosure, the book went from nowhere to bestseller. The Solicitors Regulation Authority later rebuked Gossage and fined him £1,000. Email and the transmission of documents over the internet pose threats to the secrecy of attorney-​client communications. While that threat may not ordinarily require heightened protection, it may for particularly sensitive information. ABA Opinion 477 (2017) (“[I]f client information is of sufficient sensitivity, a lawyer should encrypt the transmission and determine how to do so to sufficiently protect it, and consider the use of password protection for any attachments. Alternatively, lawyers can consider the use of a well vetted and secure third-​party cloud based file storage system to exchange documents normally attached to emails.”). B. What Do Lawyers Owe Clients? 31 Privileged Communications and Confidential Information: What Is the Difference? These two distinct categories differ in what they do, but they are often confused. It’s easy to see why. A goal of each is to protect information and often the very same information. But they have different legal pedigrees and different (if overlapping) exceptions, and they create different rights and duties. It is important to understand these differences. Privileged Information. The law of evidence is the source of the attorney-​ client privilege. The privilege protects communications between a lawyer (or his agent) and a client (or its agent). The definition of the privilege may appear in case law, statutory law, or both. Unenacted Federal Rule of Evidence 503 has a good description of the privilege. It is influential even though Congress chose not to adopt specific privilege provisions, instead telling federal courts to construe privileges “in the light of reason and experience.” Fed. R. Evid. 501. Many states adopted the unenacted rule anyway. It provides in part: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer’s representative, or (2) between his lawyer and the lawyer’s representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest,* or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client. The three conditions to note here are the required identities of the parties to the communications, the required reason for the communications, and the requirement that the communications be “confidential.” If a third person is present who is not an agent of the lawyer or client and not necessary to facilitate the representation (like an interpreter), the communication is not privileged. The client’s identity and fee arrangement are not ordinarily considered privileged except in the “limited and rarely available” situation where disclosure will reveal “the confidential purpose for which the client sought legal advice.” Taylor Lohmeyer Law Firm v. United States, 957 F.3d 505 (5th Cir. 2020). Confidential Information. A lawyer’s confidentiality duties derive from agency and fiduciary duty law as well as the professional conduct rules. See, e.g., Rules 1.6, 1.8(b), and 1.9(c). As we will see shortly, lawyers are agents of their clients and all agents owe their principals fiduciary duties. * The common interest doctrine is discussed in ­chapter 5B3. 32 II. Defining the Attorney-Client Relationship Rule 1.6(a) defines a category of information (described as “information relating to the representation of a client”) that a lawyer may not reveal unless there is an exception (as in, e.g., Rules 1.6(b), 1.13(c), and 3.3(c), all of which we will study) or the client has given consent, which may be implied. Nor may the lawyer use such information about a current client to the client’s “disadvantage” (Rule 1.8(b)); reveal such information about a former client unless there is an exception (Rule 1.9(c)(2)); or use such information about a former client to the client’s “disadvantage” unless there is an exception or the information is “generally known” (Rule 1.9(c)(1)). Information is confidential whether the source is the client (and therefore also privileged) or a person not described in unenacted Rule 503 (and therefore not privileged). For example, a conversation with an eyewitness to an intersection accident is confidential, but it is not privileged because the client was not the source. Communications from the client about the accident are both privileged and confidential. Some Further Reflections on Privilege and Confidentiality. It should now be obvious that much information that is confidential will not be privileged because the source of the information is not the client or its agents. On the other hand, all privileged communications will be confidential. Think of the two categories as concentric circles. One category is nested in the other. The inner (smaller) circle contains privileged information only. The outer circle comprises all information within the inner circle plus all other information “relating to the representation of a client,” regardless of source. confidential information privileged information Because the category of confidential information includes all privileged communications (and more), why do we even need the privilege? Does it do any extra work? Yes, it does. Here is an important difference between the two concepts, which many lawyers may overlook. When a court orders a person to answer a question, she must do so or risk contempt. But if a question calls for information protected by the attorney-​client (or other) privilege, unenacted Rule 33 B. What Do Lawyers Owe Clients? 503 tells us that both a lawyer and a client can “refuse to disclose” it. Their refusal is not contempt. Nothing can happen to them. By contrast, a court order can require disclosure of confidential information that is not also privileged. In re Original Grand Jury Investigation, 733 N.E.2d 1135 (Ohio 2000) (incriminating letter discovered by lawyer’s investigator subject to grand jury subpoena because it is not privileged under Ohio rules). If the lawyer had voluntarily revealed the letter (i.e., without a court order or subpoena), he could face civil liability as in Perez. In addition to civil liability, a lawyer’s use or disclosure of confidential information can lead to discipline. After her client replaced her with other counsel, Donna Tonderum revealed confidential information to the prosecutor to ensure a conviction. (I’m not making this up.) She was suspended for at least three years. In re Tonderum, 840 N.W.2d 487 (Neb. 2013). (Was this sanction too light?) Disclosing a client’s confidences on a consumer website in response to the client’s negative evaluation of the lawyer merits discipline. In re Skinner, 740 S.E.2d 171 (Ga. 2013). Careless disposal of client files can get a lawyer into trouble. In re Litz, 950 N.E.2d 291 (Ind. 2010) (leaving closed client files next to town dump’s recycling bin violates Rule 1.6; shredding recommended). Does the motive for the lawyer’s disclosure matter? It could if the lawyer relies on an exception to confidentiality, which we study later. But not otherwise. Thomas Tamm, a Justice Department lawyer, gave The New York Times confidential client information about what he perceived to be the government’s illegal conduct in its applications for electronic surveillance warrants. Tamm accepted a public censure to settle a disciplinary complaint alleging violation of D.C. Rule 1.6. In support of the mild discipline, the D.C. disciplinary board cited among other factors that Tamm’s “sole intent was to further government compliance with the law.” In re Tamm, 145 A.3d 1022 (D.C. 2016). The Times went on to win a Pulitzer Prize for its reporting on electronic surveillance by the George W. Bush administration. Misuse of confidential information can be a crime. United States v. O’Hagan, 521 U.S. 642 (1997), upheld the securities fraud conviction of a major law firm partner who used nonpublic information of a firm client to purchase options in the target of the client’s expected tender offer. Questions* Lynn’s law firm represents Ned in a dispute with his landlord over inadequate heat to his apartment. 1. Is what Ned told Lynn about the dispute privileged? Confidential? Both? 2. When deposed, can Ned properly refuse to answer the question “What did you tell Lynn about the claim?” Why or why not? * Answers to these questions appear in a few pages. 34 II. Defining the Attorney-Client Relationship 3. Can Lynn refuse to answer the question “What did Ned tell you?” Why or why not? 4. Can Lynn tell her husband what Ned told her? 5. Lynn interviews other tenants to prepare Ned’s case. Is what they told her privileged? Confidential? Both? 6. If subpoenaed, can Lynn cite Rule 1.6(a) to refuse to disclose what other tenants told her? 7. Can Lynn tell her husband what the other tenants told her? 8. If Lynn convenes a meeting among Ned and three other tenants as part of her investigation, are the communications at that meeting privileged? Confidential? Both? 9. In his answer to a deposition question, Ned describes the heat problem in his apartment. The landlord’s lawyer then asks, “Is what you told Lynn any different from your testimony here?” Can Ned refuse to answer? Why or why not? 10. Can Lynn tell her law partner what Ned and the other tenants told her? The Effect of Death. Unless there is an exception, the confidentiality duty in the Model Rules continues forever, even after the client’s death. California Opinion 2016-​195 agrees. What about the demands of history? Imagine that in the hours after he killed John F. Kennedy, Lee Harvey Oswald met with a lawyer and provided a detailed description of the plot, naming others who helped him. Now, nearly six decades later, should the lawyer (or his firm) be free to disclose the nearly verbatim notes of what Oswald said? Whether the privilege survives death depends on the jurisdiction but in most places it does. Swidler & Berlin v. United States, 524 U.S. 399 (1998) (rejecting Whitewater prosecutor Kenneth Starr’s effort, after Deputy White House Counsel Vince Foster’s suicide, to discover Foster’s communications with his lawyer). Should there be an exception to benefit the historical record? Should a court in 2100 be empowered, after balancing privacy against the public interest, to let historians see notes of the personal lawyers for Bill Clinton or Donald Trump while they were president? While they were in public life? Policies Behind the Privilege and the Confidentiality Rules. What policies do the privilege and the confidentiality rules serve? After all, in The Case of the Innocent Lifer, the lawyers could anticipate serious harm (prison and illness) to an innocent man. What is the social value of protecting clients who are willing to inflict such harm? Two values are often advanced. The first is empirical. “By assuring confidentiality, the privilege encourages clients to make ‘full and frank’ disclosures to their attorneys, who are then better able to provide candid advice and effective representation. This, in turn, serves ‘broader public interests in the observance of law and administration of justice.’​” Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009). This empirical prediction relies on an intuition —​some would say common sense —​about how people behave. But we have no test of this B. What Do Lawyers Owe Clients? 35 prediction. Will clients really conceal information from or lie to lawyers if communications are not protected as fully as they are now? Will they do so even knowing that an ignorant lawyer is likely to be less effective? As it happens, no communications are absolutely protected. Both the confidentiality duty and the privilege have exceptions, discussed presently, yet there is no evidence, even in jurisdictions with the broadest confidentiality exceptions, that clients trust lawyers less or are less candid. A further problem with the empirical argument is that it does not work well for (unprivileged) confidential communications from third parties whom the lawyer discovers on his own. For example, an eyewitness to a construction site accident, who was just walking by, will not be less or more forthcoming with the lawyer depending on the breadth of the lawyer’s confidentiality duty to his client. The second reason to protect client information is normative. Regardless of the effect on a client’s willingness to be candid, protecting a client’s confidences respects the client’s dignity and personhood. A client should be in control of all information the lawyer learns about her. The reason the lawyer knows this information is because she represents the client. The dignity and personhood argument is strong when the client is a biological person. It seems a bit of a stretch to talk about protecting the dignity and personhood of Google or Facebook. Recognizing the normative policy, however, does not end the inquiry. How much should it count in deciding the breadth of the confidentiality obligation and the privilege? For example, should respect for Andrew Wilson’s dignity and personhood mean that Dale Coventry and Jamie Kunz must remain silent while the innocent Alton Logan sits in prison for life? Answers to the Questions on Pages 33–34 1. 2. 3. 4. 5. 6. 7. 8. Both. Yes, because the communication is privileged. Yes, for the same reason. No. Rule 1.6(a). Confidential only. They are not clients. No, because the communications are not privileged. No. Rule 1.6(a). Communications from other tenants are confidential but not privileged because they are not clients. Ned’s communications are confidential but not privileged because the presence of third persons destroys the privilege. 9. Ned can refuse to answer because the question asks for privileged communications. 10. Yes, because as the question says, Lynn’s firm represents Ned. That would be true even if the retainer agreement named only Lynn. Lawyers are “impliedly authorized” within the meaning of Rule 1.6(a) to share client information within their law offices in order to represent clients. Rule 1.6 cmt. ‌. 36 II. Defining the Attorney-Client Relationship Organizational Clients Slip and Fall (Part I) Edith Walton, shopping in Tracy’s Department Store, slipped in the third-​floor timepiece department and broke her hip. She sued, alleging that the floor was excessively waxed. Under store policy, the general counsel’s office oversees investigations of any injury in the store. A half-​hour after the fall, Jeanine Parr, an assistant GC, asked Mike Todd in security to investigate. Todd interviewed (a) Max Burkow, head of maintenance; (b) Tim Morse, who last waxed the floor; (c) Tina Sandstrom, a salesperson in men’s furnishings who was returning from lunch; (d) Rex McCormick, a buyer in the rug department who was doing personal shopping on his day off; (e) Delia Corcoran, Burkow’s predecessor as head of maintenance, since retired, who had established the store’s floor waxing protocols; (f) Ed Rivera, president of the company that supplies wax to Tracy’s; and (g) Angie Kuhn, who was buying a watch for her father. Only Sandstrom, McCormick, and Kuhn saw Walton fall. Todd wrote up the interviews and gave his reports to Parr. Cora Lundquist, Walton’s lawyer, deposed each of the seven people Todd interviewed and Todd himself. She asked Burkow about maintenance procedures. She asked Morse about the waxing on this occasion. She asked Corcoran about the floor waxing protocols she had established. She asked Rivera about instructions his company gave Tracy’s on the use of the wax. She asked the others what they saw when Walton fell. Each witness had some memory failure so she asked Todd what they told him and demanded his interview notes. In rejecting Lundquist’s demand, Parr asserted attorney-​client privilege and her duty of confidentiality under Rule 1.6. Is she correct? A lawyer has the same confidentiality obligations whether the client is a biological person or an organization, like a corporation, a labor union, the government, or a partnership. (For convenience, I’ll assume the client is a company.) Those duties are owed to the company, not to its constituents (e.g., employees, officers, and board members), not even to constituents who are the source of a communication, unless the lawyer represents the constituent, too. We discuss that situation in ­chapter 10B, which also describes a distinct confidentiality exception when a client is an organization. Rule 1.13(c). Harder questions emerge when we turn to privilege. Companies, of course, cannot speak; their constituents speak for them. The privilege, which belongs to the company, protects communications between the company’s constituents and its inside and outside counsel. Rossi v. Blue Cross & Blue 37 B. What Do Lawyers Owe Clients? Shield, 540 N.E.2d 703 (N.Y. 1989).* But which constituents? This question sounds technical, but the answer has weighty consequences given the power of large organizations. The larger the group of constituents whose communications with counsel are privileged, the greater will be a company’s ability to keep secrets and to deny information to a court, information that might be relevant to the fair resolution of a case. One test, the least protective, says that the privilege protects only communications with those persons who actually run the company, called the control group. A more generous test looks not at the identity of the constituent, but at the subject and purpose of the communication. This is the subject matter test. Under it, communications with the CFO or a clerk can both be privileged. In Upjohn Co. v. United States, Upjohn had reason to believe that its subsidiaries had made illegal payments to foreign government officials. It needed legal advice. Its attorneys sent a questionnaire to employees worldwide seeking “detailed information concerning such payments.” They also conducted interviews. The Internal Revenue Service (IRS) subpoenaed the answers to the questionnaires and the records of the interviews. Upjohn resisted, citing attorney-​client privilege and the work-​product doctrine. Only the former concerns us here. If communications with the employees were privileged, the court could not order Upjohn to reveal them to the IRS. Under Fed. R. Evid. 501, federal courts are authorized to define the scope of federal evidentiary privileges using common law principles. The Sixth Circuit, applying a control group test, said the privilege did not apply to “communications... by officers and agents not responsible for directing Upjohn’s actions in response to legal advice... for the simple reason that the communications were not the ‘client’s.’​” These individuals were not high enough in the company. The Supreme Court reversed. UPJOHN CO. v. UNITED STATES 449 U.S. 383 (1981) Rehnquist, Justice... The attorney-​client privilege is the oldest of the privileges for confidential communications known to the common law. 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. The privilege recognizes that sound legal advice or advocacy * But see Akzo Nobel Chemicals v. Commission, 2010 E.C.R. 791, where the European Court of Justice rejected privilege for communications with inside counsel. It wrote: “An in-​ house lawyer cannot, whatever guarantees he has in the exercise of his profession, be treated in the same way as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional independence.” 38 II. Defining the Attorney-Client Relationship serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.... The Court of Appeals, however, considered the application of the privilege in the corporate context to present a “different problem,” since the client was an inanimate entity and “only the senior management, guiding and integrating the several operations,... can be said to possess an identity analogous to the corporation as a whole.”... Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant.... In the case of the individual client the provider of information and the person who acts on the lawyer’s advice are one and the same. In the corporate context, however, it will frequently be employees beyond the control group as defined by the court below —​“officers and agents... responsible for directing [the company’s] actions in response to legal advice” —​who will possess the information needed by the corporation’s lawyers. Middle-​level —​and indeed lower-​level —​employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties.... The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation. The attorney’s advice will also frequently be more significant to noncontrol group members than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation’s policy. The narrow scope given the attorney-​client privilege by the court below not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law. In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, “constantly go to lawyers to find out how to obey the law.”...2 2. The Government argues that the risk of civil or criminal liability suffices to ensure that corporations will seek legal advice in the absence of the protection of the privilege. This response ignores the fact that the depth and quality of any investigations to ensure compliance with the law would suffer, even were they undertaken. The response also proves too much, since it applies to all communications covered by the privilege: an individual trying to B. What Do Lawyers Owe Clients? 39 The test adopted by the court below is difficult to apply in practice, though no abstractly formulated and unvarying “test” will necessarily enable courts to decide questions such as this with mathematical precision. But if the purpose of the attorney-​client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. The very terms of the test adopted by the court below suggest the unpredictability of its application. The test restricts the availability of the privilege to those officers who play a “substantial role” in deciding and directing a corporation’s legal response. Disparate decisions in cases applying this test illustrate its unpredictability. The communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel.... Information, not available from upper-​echelon management, was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees’ corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice.... The Court of Appeals declined to extend the attorney-​client privilege beyond the limits of the control group test for fear that doing so would entail severe burdens on discovery and create a broad “zone of silence” over corporate affairs. Application of the attorney-​client privilege to communications such as those involved here, however, puts the adversary in no worse position than if the communications had never taken place. The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.... Here the Government was free to question the employees who communicated with [inside] and outside counsel. Upjohn has provided the IRS with a list of such employees, and the IRS has already interviewed some 25 of them. While it would probably be more convenient for the Government to secure the results of petitioner’s internal investigation by simply subpoenaing the questionnaires and notes taken by petitioner’s attorneys, such considerations of convenience do not overcome the policies served by the attorney-​ client privilege.... [Chief Justice Burger concurred in part and concurred in the judgment.]     comply with the law or faced with a legal problem also has strong incentive to disclose information to his lawyer, yet the common law has recognized the value of the privilege in further facilitating communications. 40 II. Defining the Attorney-Client Relationship What does the Court mean by this sentence: “The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney”? How does that sentence help the IRS? Whether or not intended, Upjohn appears to describe two tests. The Court first wrote: “The communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel.” Then in the same paragraph it wrote: “The communications concerned matters within the scope of the employees’ corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice.” (Emphasis added.) The italicized words further limit the scope of the privilege. Depending on which test we use, the answers to Slip and Fall (Part I) may differ for Sandstrom and McCormick, right? Keefe v. Bernard, 774 N.W.2d 663 (Iowa 2009), restated and narrowed the Upjohn holding this way: “If an employee of a corporation or entity discusses his or her own actions relating to potential liability of the corporation, such communications are protected by the attorney-​client privilege. If, on the other hand, a corporate employee is interviewed as a ‘witness’ to the actions of others, the communication should not be protected by the corporation’s attorney-​client privilege.” Under this test, are the communications with McCormick and Sandstrom privileged? Restatement §73 opts for the most protective test of all. It privileges all communications between an agent or employee of the company and its lawyer so long as the communication “concerns a legal matter of interest” to the company. There is no requirement that it concern a matter within the scope of the agent’s duties. Under this test, would any constituent’s communications with Todd not be privileged? Upjohn is good for companies, but it is also good for lawyers. A company is encouraged to place internal investigations under the authority of a lawyer, as Upjohn did, thereby enabling it to assert privilege for what the investigation uncovers so long as the company can show that counsel’s purpose was “to render legal advice or services to the client.” Spectrum Sys. Int’l Corp. v. Chemical Bank, 581 N.E.2d 1055 (N.Y. 1991) (privilege protects internal investigation by outside counsel). The lawyer need not conduct the interviews herself. In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) (“[C]‌ommunications made by and to non-​attorneys serving as agents of attorneys in internal investigations are routinely protected by the attorney-​client privilege.”). Citing Upjohn, courts have upheld claims of privilege for purely factual investigations. “[C]‌lients often do retain lawyers to perform investigative work because they want the benefit of a lawyer’s expertise and judgment.... [I]f a client retains an attorney to use her legal expertise to conduct an investigation, that lawyer is indeed performing legal work.” In re Allen, 106 F.3d 582 (4th Cir. 1997); Costco Wholesale Corp. v. Superior Ct., 219 P.3d 736 (Cal. B. What Do Lawyers Owe Clients? 41 2009) (recognizing privilege for lawyer’s factual investigation prior to giving a legal opinion). Citing Kellogg, F.T.C. v. Boehringer Ingelheim Pharmaceuticals, 892 F.3d 1264 (D.C. Cir. 2018), held that “where a communication has multiple purposes, courts apply the primary purpose test to determine whether the communication is privileged.... [C]‌ourts applying the primary purpose test should not try “to find the one primary purpose” of a communication. Attempting to do so “can be an inherently impossible task” when the “communications have overlapping purposes (one legal and one business, for example).” (Internal quotes omitted.) In re Allen also applied the privilege to communications with a company’s former employees. In Newman v. Highland School District No. 203, 381 P.3d 1188 (Wash. 2016) (collecting cases), a bare majority disagreed over a strong dissent. Which court is correct? On one hand, a former employee (like Delia Corcoran in Slip and Fall (Part I)) has information she learned because of her employment. Does it make sense to change her Upjohn status the day after she retires? On the other hand, she is no longer an agent of Tracy’s. More important, large companies can have hundreds or thousands of former employees. If their communications with company counsel are privileged, it could hinder the truth-​seeking purpose of a trial. Upjohn construed the privilege under federal law. States are free to define the privilege under state law. Even federal judges must apply state privileges in federal cases that are governed by state law. Fed. R. Evid. 501. Some states have rejected a broad reading of Upjohn, opting for a narrower test, as Iowa did in Keefe v. Bernard, supra. Texas retains the control group test. Nat’l Tank Co. v. 30th Jud. Dist. Court, 851 S.W.2d 193 (Tex. 1993) (also citing Illinois’ adherence to the control group test). Should There Even Be an Attorney-​Client Privilege for Corporations? This provocative question is fanciful. The privilege for companies (and other organizations) is not about to disappear. Only its scope is debated. But the question deserves serious consideration, at least in an academic setting, because it forces us to reexamine the justifications for the privilege and because of the societal consequences of granting the privilege (and attendant secrecy) to corporations, especially very large ones. Recall that we identified two justifications for the privilege: Empirically, it encourages clients to be candid with lawyers, which enables lawyers to do a better job for them. And it respects the dignity and personhood of clients by giving them control over their information. It makes little sense to talk about the dignity and personhood of all but very small organizations that are indistinguishable from their stakeholders. The empirical justification is also less convincing when the client is a company. Communications from a constituent enable the lawyer to do a better job for the company, not the constituent, who has no control over how the information is used. The company can choose to disclose it even if doing so exposes the constituent 42 II. Defining the Attorney-Client Relationship to civil or criminal liability, loss of a career, or public humiliation. At the very least, do you think a company lawyer should be required to give constituents they interview an Upjohn warning, formerly called a Miranda warning, if the constituent’s answers may put him at risk? See Rule 1.13(f). We address that issue in ­chapter 10. Exceptions to Privilege and Confidentiality Lawyer: Our communications are privileged and confidential. Anything my firm learns in representing you will not be disclosed without your permission except for your benefit. If you were given ten dollars each time a lawyer said something like this to a client, you’d be on your way to membership in the one percent. (Well, not quite.) Sure, it puts clients at ease and encourages candor. But it’s wrong, wrong, wrong. And yet, does the statement make sense anyway? Explaining the precise scope of the privilege and the duty of confidentiality, with all of their nuances and exceptions that permit or require disclosure, would seem nearly impossible. Truth be told, most lawyers have only a general idea of these things. Whatever rules they learned in law school, even if recalled, may have changed. An alternative is to say nothing. That might discourage candor from some clients. And what if a client asks, “What I tell you, you can’t tell anyone else, right?” Any answer other than “right” —​perhaps “well, it depends” —​may lead to further questioning and a reluctant client. But “right” is wrong. How about: “Well, there are very limited circumstances where I could, or would have to, disclose what you tell me. For example, if I learned that you were using me to commit a crime or fraud or that you lied in court. But of course that won’t happen.” In several circumstances, lawyers may choose or be required to reveal information clients wish to hide. Here are a few common exceptions to (or exclusions from) either the privilege or the duty of confidentiality or both. Would any of them allow disclosure of confidential information in the problems at the beginning of this part? Self-​Defense and Legal Claims A lawyer “may reveal [confidential] information... to the extent the lawyer reasonably believes necessary... to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Rule 1.6(b)(5). But the self-​defense route is not available to respond to public criticism of the lawyer, even if it is from the client and even if it is on social media for the world to see. See Rule 1.6 cmt.. Maybe as social media becomes even more pervasive (is that possible?) this will change, but so far it has not. B. What Do Lawyers Owe Clients? 43 Consider David Bryan. He had a romantic relationship with a current client (a bad idea and often unethical, see Rule 1.8( j)). After it ended and she had new counsel, Bryan continued to pursue her. When he learned that she “had told others that [Bryan] was stalking her, that he was dangerous, and that he was in need of mental health care,” he revealed embarrassing confidential information to third parties (including her employer) that “exceeded that which was reasonably necessary for him to defend against [the client’s] allegations.” The court held that the self-​defense exception in Rule 1.6(b)(5) “requires that the [client’s] disclosure be made in some type of legal forum.... The rule does not permit disclosure of information relating to the representation in any other setting.” In re Bryan, 61 P.3d 641 (Kan. 2003), publicly censured Bryan in a lengthy opinion that reads like a soap opera. Meyerhofer v. Empire Fire & Marine Insurance Co., 497 F.2d 1190 (2d Cir. 1974), is an old but leading case on self-​defense. Goldberg had been an associate in a law firm when the firm handled an SEC registration statement for a client. The firm rejected Goldberg’s view that information omitted from the statement had to be revealed. Goldberg quit and gave the SEC a detailed affidavit, with supporting documents. Three months later Goldberg was named as one of several defendants in a civil action arising out of the registration statement. In a successful effort to extricate himself, he gave the affidavit to the plaintiff’s lawyers. In ruling on a defense motion to disqualify those lawyers for receiving confidential information, the Second Circuit found Goldberg’s conduct proper. He had not provided information to the lawyers in order to enable them to bring the case, the court said. He was a victim, not an instigator. The complaint against Goldberg alleged civil and criminal misconduct and sought more than $4 million. The cost in money of simply defending such an action might be very substantial. The damage to [Goldberg’s] professional reputation which might be occasioned by the mere pendency of such a charge was an even greater cause for concern. Under these circumstances Goldberg had the right to make an appropriate disclosure with respect to his role in the public offering. Concomitantly, he had the right to support his version of the facts with suitable evidence. See also People v. Robnett, 859 P.2d 872 (Colo. 1993) (rule’s authority to reveal is not restricted to proceedings initiated by a former client); In re Robeson, 652 P.2d 336 (Or. 1982) (lawyer facing charge filed with disciplinary committee by third party may reveal client confidences). Goldberg did not have to wait until the trial to defend himself. In fact, had Goldberg known he was about to be sued, he could have revealed the information before the action was filed. In In re Friend, 411 F. Supp. 776 (S.D.N.Y. 1975), the court applied Meyerhofer where a lawyer and his former client were both under criminal investigation. To avoid indictment, the lawyer wanted to give the grand jury documents that (he thought) would tend to exonerate him but which the client claimed were privileged. The court 44 II. Defining the Attorney-Client Relationship approved. “Although, as yet, no formal accusation has been made against Mr. Friend, it would be senseless to require the stigma of an indictment to attach prior to allowing Mr. Friend to invoke the exception... in his own defense.” In-​ house counsel may use client confidences to prove claims against employers for retaliatory discharge and unlawful discrimination under Title VII, Kachmar v. SunGard Data Sys., 109 F.3d 173 (3d Cir. 1997), and for retaliatory discharge under 18 U.S.C. §1514A, adopted as part of the Sarbanes-​ Oxley Act, Van Asdale v. Int’l Game Tech., 577 F.3d 989 (9th Cir. 2009). Waiver (or Consent)* With “informed consent,” a defined term, clients can waive confidentiality. Rules 1.0(e), 1.6(a), 1.8(b), and 1.9(c). The more interesting debates are about privilege. Waiver of privilege may be explicit or implicit. A defendant in a securities fraud case who testified to his “good faith” belief in the “lawfulness” of his conduct waived the privilege for communications with his former counsel that tended to undermine that claim. This is about fairness. A client cannot selectively cite counsel’s advice in defense of a position and then deny his opponent access to other parts of the advice that may refute the defense. United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) (“[T]‌he attorney-​client privilege cannot at once be used as a shield and a sword.”). But a client who opens himself up this way only waives “the privilege with respect to what has been put ‘at issue.’​” The client does not waive privilege for all communications with his lawyer. Clair v. Clair, 982 N.E.2d 32 (Mass. 2013) (also holding that under state law the party asserting an “at issue” waiver must show that the privileged information is “not available from any other source”). But “asserting a claim to which privileged material is merely relevant does not waive the privilege. Instead, the client “must rely on privileged advice from his counsel to make his claim or defense.” In re Schlumberger Tech. Corp., 2020 WL 3026316 (5th Cir. 2020) (emphasis in original; internal quotes omitted). Clients will waive the protection of the attorney-​client privilege by revelation of all or part of a communication to a third person. For example, if Jed says to his friend Isabel, “I told my lawyer I was speeding,” he has waived the privilege for that statement to his lawyer (and maybe more broadly). The law will not grant privilege to communications that the client himself discloses to outsiders. Clients should be warned not to do what Jed did. More often, a client risks waiver when it chooses, for what may be sound reasons, to disclose privileged information from one matter to protect its * Consent means that the client has knowingly agreed to disclosure of confidential information. Waiver means that the client has done or not done something, the effect of which is to lose confidentiality whether or not the client intended it. However, the word “waiver” is often used interchangeably with “consent.” B. What Do Lawyers Owe Clients? 45 legal rights in another matter. Having made that choice, though, it must live with the consequences. Martin Marietta Corp. gave the U.S. attorney a position paper describing why it should not be indicted. Later, a former employee of Martin Marietta was indicted for fraud and sought to subpoena the paper in his defense. The court held that “the Position Paper as well as the underlying details are no longer within the attorney-​client privilege.” In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988). One circuit court has long recognized a “limited waiver” when a company shares privileged information with the SEC but then seeks to protect the same information in private litigation. Diversified Indus. v. Meredith, 572 F.2d 596 (8th Cir. 1978) (en banc) (“To hold otherwise may have the effect of thwarting the developing procedure of corporations to employ independent outside counsel to investigate and advise them in order to protect stockholders, potential stockholders and customers.”). Every other circuit court to consider the question has rejected this view, concluding that recognition of a limited waiver is not necessary to encourage communications with counsel —​the goal of the privilege in the first place —​and might be used for manipulative or tactical ends. In re Pac. Pictures Corp., 679 F.3d 1121 (9th Cir. 2012) (collecting cases). The Crime-​Fraud Exception to the Privilege Communications between a client and counsel are not privileged when the client has consulted the lawyer in order to further a crime or fraud, regardless of whether the crime or fraud is accomplished and even though the lawyer is unaware of the client’s purpose (as we must presume) and has done nothing to advance it. See United States v. Doe, 429 F.3d 450 (3d Cir. 2005); In re Grand Jury Proceedings, 87 F.3d 377 (9th Cir. 1996). The privilege exists to enable clients to get legal advice in order to act lawfully. We want to encourage that behavior. If the professional relationship is abused to facilitate a crime or fraud, the reason for the privilege is gone. Every litigator must be aware of this exception to privilege and the dangers and advantages it carries. If the exception applies, you may get many of an opponent’s unguarded communications made while believing they were protected. Or the opponent may get yours. But the communication must be meant to further a fraud or crime: In delineating the connection required between the advice sought and the crime or fraud, we have repeatedly stated that the legal advice must be used “in furtherance” of the alleged crime or fraud. We have rejected a more relaxed “related to” standard.... Most recently... we observed, “[a]‌ll that is necessary is that the client misuse or intend to misuse the attorney’s advice in furtherance of an improper purpose.” It is therefore clear from prior precedent that for advice to be used “in furtherance” of a crime or fraud, the advice must advance, or the client must intend the advice to advance, the client’s criminal or fraudulent purpose. The advice cannot merely relate to the crime or fraud. 46 II. Defining the Attorney-Client Relationship In re Grand Jury Subpoena, 745 F.3d 681 (3d Cir. 2014). Moreover, only those communications intended to further the crime or fraud lose privilege, not every communication between a lawyer and a client. In re Grand Jury Investigation, 810 F.3d 1110 (9th Cir. 2016). Applying the Exception. Describing the crime-​ fraud exception is easy. Unpacking the procedures for deciding when the exception applies is more difficult. This is a bit technical, but a lot may ride on it. Say in a civil litigation (Boe v. Joe), Joe asserts the attorney-​client privilege in response to a discovery request, and Boe wants to contest the assertion on the ground of the crime-​ fraud exception. Must Boe actually prove a crime or fraud to discover the allegedly privileged information? Often, the ultimate issue in the litigation will be whether Joe committed the very same crime or fraud that Boe now alleges to defeat the privilege. Unless something is done, we risk creating a “chicken and egg” problem, in which Boe has to prove her case to get the information that will help her prove her case. Courts have avoided this problem by establishing a second (lower) burden of proof than the burden at trial in order to invoke the crime-​fraud exception. Although this lower burden is variously phrased, the differences are not significant. Here is one description: The party invoking the crime-​fraud exception “must make a prima facie showing: (1) that the client was engaged in (or was planning) criminal or fraudulent activity when the attorney-​client communications took place; and (2) that the communications were intended by the client to facilitate or conceal the criminal or fraudulent activity.” By prima facie showing, we mean “a reasonable basis to believe that the lawyer’s services were used by the client to foster a crime or fraud.” This standard may be met by “something less than a mathematical (more likely than not) probability that the client intended to use the attorney in furtherance of a crime or fraud.” However, it requires more than “speculation [or] evidence that shows only a distant likelihood of corruption.” United States v. Gorski, 807 F.3d 451 (1st Cir. 2015).* In Camera Review. The Supreme Court has told us that the trial court may review the allegedly privileged information in camera (judge’s eyes only) when deciding if the opponent of the privilege (i.e., Boe) has met the (lower) burden for proving the crime-​fraud exception. United States v. Zolin, 491 U.S. 554 (1989). Zolin went on to create an even lower burden of proof for Boe to get that in camera review in the first place: * In re Napster Copyright Litigation, 479 F.3d 1078 (9th Cir. 2007), identified a higher burden in civil cases. The party challenging the privilege must prove a crime or fraud by a preponderance of the evidence. A lower burden, such as the First Circuit’s prima facie test, was deemed insufficiently respectful of the privilege. Napster was “abrogated” on the issue of interlocutory appellate jurisdiction in Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009). B. What Do Lawyers Owe Clients? 47 Before engaging in in camera review to determine the applicability of the crime-​fraud exception, “the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person” that in camera review of the materials may reveal evidence to establish the claim that the crime-​fraud exception applies. Finally, what evidence may a trial judge consider in determining whether the Zolin burden has been met? (This has now become a “chicken and egg and chicken and egg” problem, et cetera.) The Zolin Court wrote that “the threshold showing to obtain in camera review may be met by using any relevant evidence, lawfully obtained, that has not been adjudicated to be privileged.” The Crime-​Fraud Privilege Exception Applied This can all seem very abstract. So let’s apply these rules to Boe v. Joe. Scene 1: Scene 2: Scene 3: Boe seeks Joe’s emails to his lawyer. Joe asserts privilege. Boe offers proof that Joe was using the lawyer’s services to commit a crime or fraud. Hence, she says, no privilege. She seeks those emails that were in furtherance of the crime or fraud. Scene 4A: The judge holds that Boe’s evidence amounts to prima facie proof of a crime or fraud. The privilege is lost. Scene 4B: Alternatively, Boe’s proof is inadequate to apply the exception. So Boe asks the judge to review the emails in camera and add them to her proof. Scene 5: The judge can do so if Boe can satisfy the Zolin burden, quoted above. In deciding whether the Zolin burden is met, the judge may consider any relevant unprivileged evidence lawfully obtained. Scene 6: The judge reads the emails in camera and decides that the exception is or is not proved. The Confidentiality Exceptions for Crimes and Frauds and to Prevent Death and Bodily Harm Distinct from the crime-​fraud exception to the privilege (but easily confused with it) is an exception to the duty of confidentiality that may permit (or in some states require) a lawyer to reveal confidential information to prevent future financial crimes or frauds, or to avoid or mitigate “substantial” financial injury from a completed crime or fraud, if the client has used the lawyer’s services to commit the crime or fraud. Rule 1.6(b)(2) and (b)(3) describes the scope of this exception. The focus of Rule 1.6(b)(2) and (b)(3) is financial harm. Rule 1.6(b) (1) is different. It permits lawyers to reveal confidences “to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or 48 II. Defining the Attorney-Client Relationship substantial bodily harm.” The threatening conduct need not be the client’s and the conduct need not be a crime or fraud. For example, a lawyer may learn in a confidential communication that a company (whether or not a client) is selling a defective product that can cause death or serious injury. This exception would apply to GM lawyers who learned about the defective ignition switches on GM cars, which had already resulted in accidents and deaths. See c­ hapter 10A. A small number of states require (not merely permit) lawyers to reveal confidential information to prevent serious violence or, in a few places, to prevent or remedy substantial financial harm. New Jersey, which is among the states least protective of client confidences, provides in Rule 1.6: (b) A lawyer shall reveal [confidential] information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client or another person: (1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another. (Emphasis added.) Because confidentiality exceptions vary, if you find yourself facing this dilemma, you need to figure out which jurisdiction’s rules apply and check the language. The Difference Between the Crime-​Fraud and Physical Harm Exceptions to Privilege and to Confidentiality Pithily Stated Confidentiality: Lawyer Decides. If the conditions in Rule 1.6(b)(1), (2), or (3) are satisfied, the lawyer decides whether to disclose confidential information. No judge is involved. The matter may not even be in court. (This is also true about the confidentiality exception in Rules 1.13(c), studied in chapter 10. Rule 3.3(c), studied in chapter 7, mandates disclosure of certain confidential communications.) Privilege: Judge Decides. If a party challenges an opponent’s claim of privilege in court on the ground of the crime-​fraud exception, she must prove a reasonable basis to believe that the client intended the allegedly privileged communication to further a crime or fraud. As part of this proof, the challenger can ask the judge to review the allegedly privileged communication in chambers if the Zolin conditions are met. Only judges, not lawyers, decide if the crime-​fraud exception to the privilege is present. The Effect of the Confidentiality Exceptions on Privilege Let’s say a confidentiality exception permits you to disclose certain information. But you worry that doing so will result in a waiver of the attorney-​ client privilege. Will your voluntary disclosure of the information waive the privilege for that information? This dilemma confronted Jeffrey Purcell, a legal services lawyer in Boston. His client, Joseph Tyree, had been discharged as a maintenance B. What Do Lawyers Owe Clients? 49 worker at an apartment building and ordered to vacate his apartment. While Tyree was meeting with Purcell to get advice, he threatened to burn down the building. The Massachusetts rule permitted Purcell to alert the police, which he did. The police found incendiary materials in Tyree’s home. When Tyree was indicted, Purcell was subpoenaed to testify against him. He challenged the subpoena, citing the privilege. The prosecutor argued that the privilege was waived because Purcell had already revealed the information under a confidentiality exception. The cat was out of the bag. Purcell acted properly in revealing Tyree’s intention to commit a crime, the court held, but by doing so he did not waive the privilege. The crime-​ fraud privilege exception would only apply if Tyree had sought to use Purcell’s assistance to further the crime, which he did not. There was a good reason not to deem the privilege waived, the court said. “[A]‌n informed lawyer may be able to dissuade the client from improper future conduct and, if not, under the ethical rules may elect in the public interest to make a limited disclosure of the client’s threatened conduct.” But lawyers “will be reluctant to come forward if they know that the information that they disclose may lead to adverse consequences to their clients.” Purcell v. Dist. Atty. for Suffolk Dist., 676 N.E.2d 436 (Mass. 1997). Although it makes sense that a lawyer should be able to reveal confidences to prevent harm to others without thereby waiving the privilege, we might ask why Tyree’s threat was within the privilege at all. Wasn’t it just a gratuitous rant having nothing to do with Tyree’s need for legal advice? The same court answered that question in In re Grand Jury Investigation, 902 N.E.2d 929 (Mass. 2009). A client made threats against a judge. His lawyer warned the judge, then asserted privilege when called before the grand jury to testify to the threats. The court upheld the lawyer’s claim of privilege. Clients should have breathing room to express frustration and dissatisfaction with the legal system and its participants. The expression of such sentiments is a not uncommon incident of the attorney-​client relationship, particularly in an adversarial context, and may serve as a springboard for further discussion regarding a client’s legal options.... [We] reaffirm that a client’s communications to his lawyer threatening harm are privileged unless the crime-​fraud exception applies. The exception did not apply because the client did not seek the lawyer’s help in harming the judge. The emphasis on “breathing room” is important. In a Kansas case that quotes In re Grand Jury Investigation, a client had threatened in a communication with his lawyer to kill his former fiancée. The lawyer told the sheriff’s office and the threat was used to prosecute the client. The state argued that the threat was not privileged, but the court rejected what it called “the piecemealing of attorney-​client communications.... Although [the client’s] comment is jarring in isolation, the expression of such frustrations is not an uncommon occurrence in the course of an attorney-​client 50 II. Defining the Attorney-Client Relationship relationship, ‘particularly in an adversarial context, and may serve as a springboard’ for discussion and attempts to dissuade the client on the part of the attorney.” State v. Boatwright, 401 P.3d 657 (Kan. Ct. App. 2017). The court cited Elihu Root’s dictum, quoted at the beginning of part B1, that “half of the practice of a decent lawyer is telling would-​be clients that they are damned fools and should stop.” The “Fiduciary” Exception Many courts hold that a beneficiary is entitled, on a proper showing, to communications between a fiduciary (like a trustee) and counsel for the fiduciary because the lawyer’s ultimate client is the beneficiary, not the fiduciary. The English and American antecedents of this exception are traced in United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011). This issue arises in shareholder derivative actions. Plaintiff shareholders may seek otherwise privileged information between company counsel and management, claiming that they are the ultimate beneficiaries of counsel’s work. The leading case here, Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), held that the shareholders might prevail but must show why the privilege “should not be invoked in the particular instance.” Among the factors to consider were the following (with brackets added for convenience): the number of shareholders and the percentage of stock they represent; the bona fides of the shareholders; the nature of the shareholders’ claim and whether it is obviously colorable; the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources; whether, if the shareholders’ claim is of wrongful action by the corporation, it is of action criminal, or illegal but not criminal, or of doubtful legality; whether the communication related to past or to prospective actions; whether the communication is of advice concerning the litigation itself; the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest for independent reasons. Garner got a big boost when the Supreme Court of Delaware, the state where many large U.S. companies are incorporated, adopted it in Wal-​Mart Stores v. Ind. Elec. Workers Pension Trust Fund IBEW, 95 A.3d 1264 (Del. 2014). Although Garner has been broadly followed, endorsement has not been unanimous. See the discussion in Jicarilla Apache Nation, supra, and Pittsburgh History & Landmarks Foundation v. Zeigler, 200 A.3d 58 (Pa. 2019), where the court was able to discern the following dire consequences of adopting the Garner rule —​and a similar rule in Restatement §85 —​in corporate derivative actions: The reality is that this weighing of the [Garner] factors would result in current managers and the corporation’s attorneys having no meaningful way of determining whether their otherwise privileged communications would be later B. What Do Lawyers Owe Clients? 51 divulged in derivative litigation discovery. As a result, corporate management would be less willing to discuss issues with corporate counsel, and corporate counsel would caution corporate management not to speak with her candidly. As a matter of simple logic, this will result in corporate managers being forced to act without necessary legal guidance in an already complicated legal environment. We conclude that this is inconsistent with the revered nature of the attorney-​client privilege in Pennsylvania, and the clarity of it, which has been codified by our legislature and applied continuously by our courts. In the half-​century since Garner was decided, such ominous consequences do not seem to have emerged in the many jurisdictions that follow it, which may explain why, in a footnote, the court left open the possibility that Garner may yet be useful in other fiduciary settings. Noisy Withdrawal When a lawyer must withdraw from representing a client because of its criminal or fraudulent behavior, and she is either not permitted or does not wish to reveal confidential information to alert the victim as she exits, she may want to retract her own oral or written representations that the client may be using or have used for the illegal purpose. The retraction makes the withdrawal a “noisy” one. A noisy withdrawal is not a full-​blown exception to confidentiality because the lawyer says only that she retracts something, not why. Noisy withdrawals are recognized in Rules 1.2 cmt. and 4.1 cmt. ‌and are further discussed in c­ hapter 9B1 on negotiation. Lawyers and Social Media: Risks, Benefits, and Best Practices* The turn of the century brought new ways to communicate, which lawyers eyed with suspicion. Clarence Seward, managing partner of a law firm that later became Cravath, Swaine & Moore, believed the telephone and typewriter were “destroying the simplicity of American life.” He refused to answer the telephone, which was confined to a “telephone closet.” When the young John Foster Dulles, a future Secretary of State, joined Sullivan & Cromwell in 1911, “many of the attorneys believed that the only proper form of communication was through the use of letters delivered by hand.” The telephone was “in a separate office and... clerks [did not] use [it] unless it rang.” Jan Jacobowitz & Danielle Singer, The Social Media Frontier: Exploring a New Mandate for Competence in the Practice of Law, 68 U. Miami L. Rev. 445 (2014). Eventually, of course, lawyers embraced the telephone. More than a century later, the technology is new, but the need to figure out how safely to use it —​and how not to use it —​remains. Social media sites —​both general ones, like Facebook, Twitter, and LinkedIn, and * This cautionary note could appear in several chapters of the book but this chapter, which addresses confidentiality, competence, and the formation of the professional relationship, is most apt. 52 II. Defining the Attorney-Client Relationship law-​specific ones, like law blogs —​offer lawyers new opportunities but also pose dangers. Done right, lawyers and legal organizations can use social media to attract clients and promote their reputations. Done wrong or mindlessly, it can bring grief. Young lawyers, for whom use of social media may be as automatic as breathing, are especially at risk. A court vacated the convictions of New Orleans police officers without “a showing of actual prejudice” because while their trial was in progress, federal prosecutors (although not those trying the case) posted anonymous accusatory blog comments on a website accessible to the jury, which was not sequestered. United States v. Bowen, 969 F. Supp. 2d 546 (E.D. La. 2013), aff’d, 799 F.3d 336 (5th Cir. 2015). The officers were charged with civil rights violations, including use of excessive force, in the aftermath of Hurricane Katrina. Although a lawyer is permitted to seek information about potential or current jurors on publicly available social media posts, a lawyer may not send access requests to jurors in an effort to view nonpublic content. Nor may a lawyer seek to “friend” a witness by misrepresenting her purpose. NYC Opinion 2010-​2. But “[t]‌he mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b).” ABA Opinion 466 (2014). On the first day of trial, a federal judge in Florida referred the lawyer for the plaintiff —​a cruise ship passenger —​to a disciplinary panel. The lawyer had posted information about the case on Facebook, which the defendant company claimed was false or in violation of a court order. The court asked the panel to determine whether the posts violated two of its orders. Joyce Hanson, “Carnival Injury Atty’s Facebook Posts Go To Conduct Panel,” Law 360, June 3, 2016. “Lawyers for Child Welfare and Legal Aid Under Scrutiny for Facebook Posts” read a New York Times headline on August 30, 2017, over a story by Nikita Stewart. Four lawyers —​three at the Administration for Childr