| Author
|
Post |
 
|
|
Dave Starr
F L I N T O I D
|
|
Mon Mar 10, 2008 8:22 am |
|
|
terrybankert
F L I N T O I D
|
|
|
Mon Mar 10, 2008 8:56 am |
|
|
Bossman
F L I N T O I D
|
|
|
Mon Mar 10, 2008 9:59 am |
|
|
Bossman
F L I N T O I D
|
Attorneys are governed by rules of professional conduct. They are fairly standard nationwide. In both Illinois and Michigan, Rule 1.6 in the rule book covers confidentiality. In brief, an attorney must maintain confidence with a clients information unless it is necessary to reveal the information to "prevent the client from committing an act that would result in death or serious bodily harm". The only other permittable circumstance is with the clients consent. In this case the death had already occurred, so there was nothing for the attorneys to prevent. Therefore, the code or professional responsibility required them to maintain the secret.
http://www.law.cornell.edu/ethics/il/code/IL_CODE.HTM#Rule_1.6 |
|
|
|
Mon Mar 10, 2008 10:00 am |
|
|
Bossman
F L I N T O I D
|
MCPR 4 states that a lawyer should preserve the confidences and secrets of a client. MCPR DR 4-101 states:
"(A) "Confidence" refers to information protected by the lawyer-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
"(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
"(1) Reveal a confidence or secret of his client.
"(2) Use a confidence or secret of his client to the disadvantage of the client.
"(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
"(C) A lawyer may reveal:
"(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
"(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
"(3) The intention of his client to commit a crime and the information necessary to prevent the crime.
"(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct."
The principle of confidentiality is given effect in two related bodies of law, the lawyer-client privilege in the law of evidence and the rule of confidentiality established in professional ethics. The application of these guiding principles requires analysis of two threshold questions: First, has an lawyer-client relationship arisen as a result of the ALJ contact and request for representation, and second, does the subject discussed constitute a "confidence" or "secret" to be held inviolate.
There is little guidance as to when the lawyer-client relationship arises. It is clear that neither a contract of retention nor financial compensation are needed, but an exact test has never been succinctly delineated. ABA Op 47, Op 83, Op 216, iCI-341. These tend to focus upon the nonlawyer seeking and receiving personal advice from the lawyer. This can be done casually, on a street corner, or more formally. There, a discussion of possible representation between the lawyer and a prospective client barred the lawyer from accepting a later offer of employment from the adversary in the contemplated litigation even when the first offer of retention was not accepted.
The Rules of Professional Conduct recommended for adoption by the Michigan Supreme Court states at "Preamble: A Lawyer's Responsibilities":
"Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6 that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact."
The application of this standard, therefore, requires the inquirer to consider the facts and circumstances surrounding the discussion with the ALJ. Since the Committee is not permitted to resolve questions of fact or to opine on matters that have already transpired, we cannot undertake to resolve the question of whether or not an lawyer-client relationship exists.
Regardless of the outcome of the foregoing inquiry, the matters discussed between the lawyer and the judge may constitute "confidences" and "secrets" under MCPR Canon 4 and DR 4-101. The ethical obligation to preserve confidences and secrets is far broader than the lawyer-client privilege. As pointed out in ABA Model Code of Professional Responsibility EC 4-4:
"This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge."
Any information provided during a consultation and inquiry for professional assistance, regardless of whether a lawyer-client relationship is formally established, may constitute confidences or secrets.
Recognizing that the proposed Model Rules have yet to be adopted in Michigan, Model Rule 1.6 defines confidentiality to include information "relating to the representation". In contrast, MCPR DR 4-101 applies only to information governed by the lawyer-client privilege and to information "gained in" the professional relationship that "the client has requested be held inviolate or the disclosure of which would be embarrassing or would be detrimental to the client". Quoting from the ABA Committee Notes specifically on this point:
"Rule 1.6 thus imposes confidentiality on information relating to the representation even if it is acquired before or after the relationship existed. It does not require the client to indicate information that is to be confidential, or permit the lawyer to speculate whether particular information might be embarrassing or detrimental. Furthermore, this definition avoids the constricted definition of "confidence" that appears in some decisions. See Allegaert v Perot, 434 F. Supp. 790 (S.D.N.Y. 1977); Moritz v Medical Protection Co., 428 F. Supp. 865 (W.E. Wis. 1977); City of Wichita v Chapman, 521 P. 2d 589 (Kan. 1974)."
Based upon either the current version of MCPR DR 4-101 or proposed Rule 1.6, a discussion between a lawyer and a prospective client concerning a possible legal claim would most ordinarily include information deemed a "confidence" or a "secret".
http://www.michbar.org/opinions/ethics/numbered_opinions/CI-984.html |
|
|
|
Mon Mar 10, 2008 10:16 am |
|
|
Bossman
F L I N T O I D
|
| Steve.....why does this darn thing keep double posting, and how do I delete one of them? |
|
|
|
Mon Mar 10, 2008 10:18 am |
|
|
twotap
F L I N T O I D
|
| I would think a "real man" would have stepped up and not knowingly allowed an innocent person to spend all those years behind bars. What would have been the penalty if one of those attorneys had come forth? |
_________________
"If you like your current healthcare you can keep it, Period"!!
Barack Hussein Obama--- multiple times. |
|
|
Mon Mar 10, 2008 12:19 pm |
|
|
Bossman
F L I N T O I D
|
|
|
Mon Mar 10, 2008 1:43 pm |
|
|
Dave Starr
F L I N T O I D
|
| And keeping your law license is much more important that an innocent person spending 26 years in prison. |
_________________
I used to care, but I take a pill for that now.
Pushing buttons sure can be fun.
When a lion wants to go somewhere, he doesn’t worry about how many hyenas are in the way.
Paddle faster, I hear banjos. |
|
|
Mon Mar 10, 2008 2:19 pm |
|
|
Bossman
F L I N T O I D
|
| Are you willing to quit your job and be discredited to fix somebody elses mistake? The attorneys in question didn't put an innocent man in jail. The prosecutors and the police are responsible for that. Now that they've been given new information they still don't want to let him out. If you read the whole article you see that they found the shotgun that killed the security guard when they were investigating the real suspect on another murder. Instead of wondering how that could happen they discounted that information and prosecuted the wrong man. |
|
|
|
Mon Mar 10, 2008 4:53 pm |
|
|
|
FAQ
Search
Memberlist
Register
Profile
FlintTalk.com Forum Index
> Political Talk
