MPT Grading Materials July 2010 - Oregon State Bar

Multistate Performance Test
Model Answer
In re Hammond
In summary, the court should conclude that Walker may not be compelled to appear
before the grand jury to disclose her communications with Hammond about the fire, whether by
testimony or production of documents. Rule 1.6 of the Franklin Rules of Professional Conduct
prohibits Walker from making such disclosures in this case. Doing so would violate her ethical
duty to her client.
B. Rule 513 of the Franklin Rules of Evidence Does Not Require or Permit Attorney
Walker to Disclose Her Communications with Her Client William Hammond to the
Grand Jury.
Under Rule 513 of the Franklin Rules of Evidence (Rule 513), a client “has a privilege to
refuse to disclose and to prevent any other person from disclosing a confidential communication
made for the purpose of facilitating the rendition of professional legal services to the client.”
However, there is no such privilege if the client sought or obtained a lawyer’s services to help
further a crime or fraud.
In this case, all the communications between Walker and Hammond about the fire are
confidential and all of them were made for the purpose of facilitating the rendition of Walker’s
services as a lawyer to Hammond as her client. Therefore, all the communications at issue in this
subpoena are presumed privileged because they are confidential and are in fact privileged: all the
communications were made with a view toward the providing of legal services. Under Rule 513,
it is Hammond’s privilege; as his attorney, Walker would need Hammond’s explicit or implied
consent to disclose. Hammond has not provided any consent in this case; in fact, Walker asserts
that he wishes her not to disclose.
To rebut the presumption of privilege that exists as discussed in the comments to Rule
513, this court should apply the rule that the party claiming otherwise, in this case the Gordon
County District Attorney, must carry the burden of proof by a preponderance of the evidence.
But before the court can make that determination, the District Attorney must present evidence
which raises a substantial question as to whether the attorney-client communications are covered
by the crime-fraud exception to the Rule 513 privilege. In State v. Sawyer (Columbia Sup. Ct.
2002), the highest court of our neighboring jurisdiction squarely addressed this issue. The
Sawyer rule addresses the important interests involved by requiring that challenging parties
produce evidence that meets a “probable cause” standard before privileged materials can be
submitted to a court for an in camera determination of whether the crime/fraud exception may
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