MPT Grading Materials July 2010 - Oregon State Bar

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$P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar$

$P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar$

Multistate Performance Test GRADING SUMMARY In re Hammond William Hammond is the subject of a grand jury arson investigation as a result of a suspicious fire that burned down the building that housed his company, the Hammond Container Co. His attorney, Carol Walker, has been subpoenaed to testify and produce materials relating to their communications. Applicants’ task is to draft a brief in support of a motion to quash arguing that under the Rules of Prof. Conduct and Evidence, Walker may not be compelled testify or to produce the materials in question. Disclosure Is Not Appropriate under the Fr. Rules of Prof. Conduct (35% total weight) • Rule 1.6 prohibits disclosure of client communications; no exceptions apply here. • Hammond does not consent to disclosure. He has told Walker not to disclose anything. • No facts support Hammond’s implied authorization to disclose to carry out the representation. • Clearly Walker does not believe disclosure is necessary “to prevent … substantial injury to the financial interest … of another that is reasonably certain to result.” Rule 1.6(b)(3) • No insurance claim has been filed; there is no imminent injury to another’s financial interest. • Thus, it is not “reasonably certain” that injury to another will occur. • By challenging the subpoena, Walker is demonstrating her belief that no disclosure is necessary to mitigate or rectify any harm to a third party or that Hammond has used her services in furtherance of the commission of a crime. • There are no facts that counter Walker’s belief that disclosure of information regarding Hammond’s representation/case is not needed in order to prevent financial injury to another. • Further, Rule 1.6(b) is permissive (e.g., “a lawyer may reveal information…”), not mandatory, so even if an exception applied, the rules would not require Walker to disclose the communications. Fr. Rules of Evidence Do Not Compel Disclosure of A/C Communications (65% total weight) • Confidential A/C communications are presumed privileged. Fr. R. Evid. 513. (25%) • Walker may claim the privilege on Hammond’s behalf. Fr. R. Evid. 513(b)(3). • A preponderance of the evidence is required to overcome the presumption. Rule 513 cmt. • The crime/fraud exception to the privilege. (Rule 513(d)(1)) does not apply. • The proof needed for in camera review re: privilege is an open question in Franklin. • Columbia requires probable cause to believe the communication is not privileged. Sawyer. • The 15th Circuit requires only the “some evidence” standard. Robb. • Applicants should argue for the stricter probable cause standard on public policy grounds, but note that the DA doesn’t even have enough to meet the “some evidence” standard and so no substantial question is raised regarding the communications’ status. (40%) • The evidence may support an inference that Hammond committed arson with intent to defraud, as the building was insured for $500k. Fr. Crim. Code § 3.02; police report. • The Fire Marshal called the fire “suspicious”; Hammond hasn’t fully cooperated with police; he’s said he was with a friend on the day of the fire, but the friend denies it. See police report. • Hammond contacted his insurer about filing an insurance claim (but has not yet filed it). Id. • Hammond has financial problems: he was denied a loan and has a $425k mortgage. Id. • But it is unreasonable to infer that Hammond retained Walker in furtherance of a crime. • Hammond may have wanted to obtain counsel because he knew he was under investigation. No publicly available evidence points to an ongoing scheme to defraud, as in Robb. • Hammond hired Walker after the fire, which cuts against applying crime-fraud exception. • Past/completed crimes do not fall under the crime/fraud exception. See Rule 513(d)(1). 11
Multistate Performance Test In re Hammond <strong>Grading</strong> Guidelines I. Overview <strong>Grading</strong> Comments • Applicants’ law firm represents attorney Carol Walker, who has been subpoenaed by the grand jury in an arson investigation to appear with regard to her client William Hammond. • Hammond’s building, which housed his business, burned down on May 10. He hired Walker two days after the fire, after being contacted by the police. This section is informative only and no grading weight is assigned. No discrete weight is assigned to the “format” component of the task. • Walker does not want to appear before the grand jury. • Applicants’ task is to craft the arguments in support of the motion to quash the subpoena. • There are two issues to address: whether disclosure may be compelled under the Franklin Rules of Professional Conduct or the Franklin Rules of Evidence. • Franklin Rule of Prof. Conduct 1.6 is identical to Rule 1.6 of the ABA’s Model Rules. • Franklin Rule of Evidence 513 is similar to the lawyerclient evidentiary privilege in many jurisdictions. • Applicants should argue that disclosure of the attorneyclient communications between Walker and Hammond cannot be compelled under either the Franklin Rules of Professional Conduct or the Franklin Rules of Evidence. II. Walker may not be compelled to testify under Fr. Rule of Professional Conduct 1.6. • Under Rule 1.6, a lawyer may not reveal information relating to the representation of a client. The information need not be a lawyer-client communication, nor must it be confidential—it need only relate to the representation for the rule to apply. • Rule 1.6 is broader than the evidentiary privilege (Fr. R. Evid. 513), which applies only to communications between the lawyer and client. • All the Hammond/Walker communications in the file fall within the rule, as well as the memos from Walker’s file. • The Walker/Gomez communications relate to Walker’s representation of Hammond and are covered by R. 1.6. • There are exceptions to the Rule when (1) the client gives informed consent to disclosure, or (2) disclosure is impliedly authorized to carry out the representation. • Note that Hammond specifically requested that Walker not disclose any of their communications. • Nor do the facts support any conclusion that Hammond implicitly authorized any disclosure by Walker. 12 No separate statement of facts is required, but applicants should incorporate the facts into their analyses. Applicants are told to use descriptive section headings. The assignment is to draft an argument. Work product that is objective in tone is not responsive to the instructions. (35% total weight) Reduced credit for applicants who disclose too many facts which are privileged and so not known to the DA. Only the fact that Hammond retained Walker and the date of her representation, and the fact that she advised him to refer any questions to her (see Police Report) should be mentioned. The other listed exceptions in subsection (b), to prevent death or bodily harm, or to comply with law or a court order, plainly do not apply.
Page 1 and 2: MPT- 1 710 In re Hammond Grading Ma
Page 3 and 4: Point Sheet
Page 5 and 6: I. Detailed Analysis The following
Page 7 and 8: • Walker has advised Hammond that
Page 9 and 10: • Hammond has not been willing to
Page 11 and 12: the fire was intentionally set. [Co
Page 13: Grading Summary and Grading Guideli
Page 17 and 18: Multistate Performance Test In re H
Page 23 and 24: Multistate Performance Test Model A
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MPT Grading Materials July 2010 - Oregon State Bar

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