Summary: Professional Responsibility

Read the summary and the most important questions on Professional Responsibility

• 1 Professional Responsibility

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• Joint Representation Doctrine

  A L represents 2 or more Cs in a single matter. Communications between the common L and 2 (or more Cs) are not subject to ACP waiver (based on sharing priv'd info w/ 3rd parties).

• Common Interest Arrangement Doctrine

  A common interest arrangement is formed when 2 or more lawyers/firms (L1 + L2) separately represent clients (C1 + C2) on a matter of common interest between both clients. The doctrine is an exception to the rule that an existing privilege is waived when the L-C communication is shared with a 3rd party (doctrine posits that other clients who have a common interest (and their Ls) should not be viewed as 3rd parties).

• Corporate Miranda Doctrine (Upjohn Warnings).

  • Upjohn Warning Defined: The notice that an entity's L provides to an employee to inform him that L represents only the entity and not the employee individually. 
  • Requirements: The Upjohn Warning should make clear that (1) that he represents the entity and not the employee individually ;(2) The ACP  over the communications belongs solely to, and is controlled by, the entity; and (2) the entity may choose to waive the privilege and disclose to a 3rd party the information provided by the employee to L

• ABA provision on interviewing corporate constituents

  1.13(f) speaks to interviews with organizational constituents: Instructs L to "explain the identity of the C when L knows or reasonably should know that the organization's interests are adverse to those of the constituent with whom the L is dealing."

• ABA 4.3: General rule on dealing with unrepresented persons

  If the unrepresented person misunderstands L's role in the matter, L may have to clarify it. 
  
  L cannot create the impression that he is disinterested and cannot give the person advice (except to get a L) if that person's interests may conflict with those of L's C. 

• Bevill Test: 5-part burden for corporate officers who claim a personal ACP for communications with corporate counsel.

  The corporate officer claiming the privilege must show:
  

  1. He approached counsel for the purpose of seeking legal advice; 
  2. When he approached L, he made it clear that he was seeking legal advice in his individual--rather than representative--capacity 
  3. L saw fit to communicate with him in his individual capacity, knowing that a possible conflict could arise 
  4. The conversations with L were confidential 
  5. The substance of the conversations with L did not concern matters with the entity or its general affairs. 

• Attorney-Client Relationship and Change in Corporate Control

  Whether the A-C R [Attorney-Client Relationship for organizational C] transfers to new owners of a corp turns on the practical consequences of the transaction. Test turns on whether the entity's business operations continue under the new owners/managers. 
  

  • When control of a corp passes to new ownership, the ACP passes to the new ownership
  • When there is a mere transfer of assets with no attempt to continue the preexisting operation, no A-C R is transferred. 

  
  See Tekniplex (NY 1996). 

• Does ACP to confidential information relating to a merger negotiation pass to buyer?

  FORK:
  

  • V1 - Tekniplex (NY 1996): During merger negotiation, corp's interests were adverse to buyer, so the ACP remains with the old corp and its managers. 
  • V2 - Great Hill (Del Ch. Ct. 2013): All priv'd info held by seller/target corp's law firm became the property of buyer--including comms surrounded the merger negotiations b/c DGCL 259 clearly dictated as much, leaving no room for judicial revision. 

• Great Hill (Del Ch 2013)

  CT refuses to recognize a Tekniplex exception. Unless the merger/acquisition agreement provides otherwise, everything passes to the buyer. Note that other jurisdictions are buying into the Great Hill RLE, although the decision was based on DGCL 259.

• PDC broader than WPD & APC in this regard

  The ACP and WPD apply when compulsory process by a judicial officer or other governmental body seeks to compel a L to testify or produce information or evidence concerning a C. 
  
  By contrast, the PDC applies to a L in all settings, and at all times, prohibiting the L from disclosing confidential information unless permitted or required by the Rules or to comply with other law or a court order.