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 In re Hammond and the communications are privileged under 513(d). <strong>Grading</strong> Guidelines • In contrast to the Sawyer court, the 15th Circuit has adopted a more lenient “some evidence” test. Robb. • Under Robb, if “some evidence” supports the inference that the client sought the attorney’s services to further a crime or fraud, the court will review the materials in camera and determine if the crime/fraud exception applies. • In Robb, there was independent, public evidence (records of actual mining results that showed that Robb made public misrepresentations about the mine’s ore yields) that the attorney was hired in the midst of an ongoing crime, and the government could show that crime with the discrepancy between the actual mining results and the information given to the public. • Arguably, this more than satisfies the “some evidence” standard. • Moreover, applicants can argue that the same public policy underlying the existence of the attorney/client privilege— encouraging frank discussions between clients and attorneys—also supports the Franklin courts adopting a probable cause standard. • “[T]he attorney-client privilege [is] the oldest of the privileges for confidential communications known to the common law.” Robb. • The “some evidence” standard creates the risk that it will be too easy for opposing parties to infringe on the confidentiality between attorney and client. The Robb court recognized (but rejected) this risk. • Indeed, the looser standard encourages “fishing expeditions” as here, where an attorney is subpoenaed to testify based on little more than speculation that her services may have been used to facilitate a crime or fraud. • Franklin should follow Columbia in requiring a “strong factual basis for the inference” that the crime-fraud exception applies before allowing privileged communications to be submitted to the court for in camera review. [This also conserves judicial resources, by requiring the moving party to assemble a solid case before seeking in camera review.] • Facts that applicants can use in their arguments are only those that the DA has already established; otherwise they are divulging confidences that Hammond has instructed Walker not to divulge. • Hammond Container Company building was destroyed Applicants should clearly set out the facts known to the DA to date (without invading A/C privilege) and state why they do not rise to either “some evidence” or “probable cause” standard. 15
Multistate Performance Test In re Hammond by fire; • Hammond owned the business and the building; • Hammond had insured the building; • Hammond has inquired about filing an insurance claim, but has not filed such a claim; • Hammond was turned down for a bank loan before the fire, because of his company’s financial condition; • The Fire Marshal classified the fire as suspicious in origin; • The day after the fire, Hammond answered police questions; • The next day, Hammond retained Walker, and per her instructions, referred all further questions to her; • There is a discrepancy between what Hammond and Gomez said they were doing the day of the fire; <strong>Grading</strong> Guidelines • Here there was a fire, and Hammond hired a lawyer. His requesting insurance claim forms is just as much the act of an innocent man who has paid his insurance premiums and now wants to collect on them under his insurance contract as it is the act of someone who intends to file a false claim. • Thus this case is distinguished from Robb, where the facts tended to show that the attorney was hired “in the midst of a fraudulent scheme.” • Accordingly, even under Robb’s lower “some evidence” standard, the facts do not support any argument that the crime/fraud exception applies. • Walker’s memo about the call from Ray Gomez would be protected only by work-product privilege, because it is not a communication between Hammond and Walker (but it would be covered by Rule 1.6). • Note that the subpoena refers only to Walker’s communications with Hammond. Thus, on its face, it would appear not to extend to Walker’s conversation with Gomez. • In any event, no matter which standard the court might apply, and even if the court might end up requiring Walker to disclose her communications with Hammond about the fire so as to determine their status as privileged or nonprivileged, the result would likely be the same: The court would likely conclude that the communications were in fact privileged inasmuch as they are presumed to be such in light of their confidential character and the presumption is not rebutted by a preponderance of evidence proving the crime-fraud exception. 16
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 and 14: Grading Summary and Grading Guideli
Page 15 and 16: Multistate Performance Test In re H
Page 17: Multistate Performance Test In re H
Page 21 and 22: Multistate Performance Test In re H
Page 23 and 24: Multistate Performance Test Model A
Page 25 and 26: Multistate Performance Test Model A

MPT Grading Materials July 2010 - Oregon State Bar

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