Class 08: The Duty of Confidentiality

Materials

Restatement of Law Governing Lawyers

Restatement § 68 (Attorney-Client Privilege)

Except as otherwise provided in this Restatement, the attorney-client privilege may be invoked . . . with respect to:

(1) a communication

(2) made between privileged persons

(3) in confidence

(4) for the purpose of obtaining or providing legal assistance for the client.

Restatement § 70 (“Privileged Persons”)

Privileged persons within the meaning of § 68 are the client (including a prospective client), the client’s lawyer, agents of either who facilitate communications between them, and agents of the lawyer who facilitate the representation.

Restatement § 71 (“In Confidence”)

A communication is in confidence within the meaning of § 68 if, at the time and in the circumstances of the communication, the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person as defined in § 70 or another person with whom communications are protected under a similar privilege.

 Federal Rules of Civil Procedure

Louisiana Rules of Professional Conduct

Problem

boat_houseA prospective client, Carter Client, visited your office and reported that he believed he would soon be sued by the buyer of his house. He admitted to you that he lied to the buyer about whether his house flooded in 2005 during Hurricane Katrina. More particularly, he falsely told the buyer that the house “was dry, or at least that’s what the guy who owned it told me when I bought it a few years ago.” After a recent heavy rain, the house flooded, and the buyer discovered that it floods all the time. You agreed to take the case.

A few weeks ago, you tracked down the guy who sold Carter the house in 2005, Wally Witness. At the time, Wally lived in Atlanta. You called him on the phone and he told you that everyone who looked at the house was told that the house was “wet, wet, wet” in Katrina. He specifically remembers telling that to Carter. You took notes of the interview. Your notes record in your handwriting that “this guy sure sounds honest and credible.” Wally also emailed you a picture he took of his house just after the storm (see above). Shortly thereafter, Wally died when he was truck by lightning.

You met Carter’s banker at a cocktail party. He told you that Carter “is broke.” “Interesting,” you responded.

The buyer has sued Carter in Orleans Parish Civil District Court. He has subpoenaed your interview notes with Wally Witness and “any materials obtained from Mr. Witness.”

At a Pelican’s game the other night a friend of yours queried: “Is it true that Carter is broke?”

Discuss.

 

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