July 2010-MPT 01-NYBOLE-Above Average Answer 2

I. Absent consent of the client an attorney shall not reveal information relating to the client's representation.

The lawyer-client privilege is well established by both the Franklin Rules of Professional Conduct (hereinafter FRPC) and Franklin Rules of Evidence (hereinafter FRE). The FRPC explicitly state that a "layer shall not reveal information relating to the representation of the client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out representation or the disclosure is permitted by paragraph (b) (to be discussed below). (FRPC 1.6)

Here, Attorney Walker's client has not only failed to give informed consent but Mr. Hammond has expressly stated that he does not wish to waive the privilege and does not want Attorney Walker to reveal his communications. Likewise, Mr. Hammond has not by the act of retaining counsel implicitly authorized disclosure to carry out his representation. Rather the reason for his retaining counsel is simply to ensure that he faces no criminal liability from the five which destroyed his business (a prudent move for anyone) and to discover whether or not he could file an insurance claim. Again, neither of these acts imply his desire for counsel to breach his confidence. Breach of Hammond's confidence based on the above would erode the very essence of the lawyer-client privilege the code seeks to protect.

Further, the alleged acts asserted by the prosecution do not fit the exception of subsection (b) of FRPC 1.6. Section (b) permits a lawyer to "reveal information relating to the representation of a client to the extent that the lawyer believes is reasonably necessary to 1) prevent reasonably certain death or substantial bodily harm.. .(or).. .2) to prevent, mitigate or rectify substantial injury to the financial interest or property of another that is reasonably certain to result from the clients commission of a crime or fraud of which the client has used the lawyer's services." [FRCP 1.6(b)]

Neither of the above exceptions to FRCP 1.6(a) are applicable. First off, Attorney Walker is fully aware of the rules set forth in 1.6 and the exceptions and believes that 1.6 protects her clients information.

Regardless of whether Attorney Walker's belief that she does not have to disclose her clients confidences it is clear that neither exception of 1.6(b) applies Attorney Walker's revealing information fails to fulfill the subsection (1) requirement because there is no threat of death or substantial bodily harm. The conduct alleged by the prosecution has already occurred making subsection (1) wholly implacable.

Further, there is no need to reveal client confidences based on subsection (3) of 1.6. Although it allows an attorney to reveal client confidences to prevent or rectify substantial injury to the financial interest of another there is no proper application of this exception. As police reports conclude Hammond at most has contacted his insurance carrier he has not filed any type of insurance claim as of date (see Gordon Police Department Incident Report). Thus, there is no threat of financial harm present to date to another's property interest. A claim under this exception if it was even appropriate (which is arguable at best) is not ripe.

Lastly, subsection (3) is implicable as per its final part because there is no fraud which has "resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services." [FRCP 1.6(b)(3)] Attorney Walker is fully aware of her ethical obligations and recommends to all clients that they do not commit nor will she participate in a crime or fraud.

Accordingly, under 1.6 of the FRPC Attorney Walker is not permitted to reveal the client confidences of Mr. Hammond.

II. The people have failed to come forth with sufficient "some evidence" to breach the Franklin Rules of Evidences lawyer client privilege.

The attorney client privilege represents one of the oldest and most sacred privileges in the legal realm. It is meant to "encourage full and frank communication between attorneys and clients. (U.S. v. Robb). However, this privilege is not absolute and "because the privilege has the effect of withholding information from the fact finder it should apply only where necessary. (Robb). Thus, the Franklin Rules of Evidence (hereinafter FRE) as well as case law has established the crime fraud exception to the privilege set forth in FRE 513(d). This exception breaches the veil of the privilege "if the lawyer's services were sought or obtained to enable or aid anyone to commit or plea what the client knew or reasonably should have known to be a crime or fraud." [FRE 513(d)].

However, it must be noted as per the official advisory comment to 513 that a communication made between a client and a lawyer is presumed to be privileged. Any party (here the people) claiming that such communication is not privileged bears the burden of proof by a preponderance of the evidence.

Although to date Franklin courts have not yet determined what evidence must be proven to breach the privilege the proponent party must at least state sufficient "some evidence" (if not probable cause).

According to the court in Robb, the same evidence standard is established by the party seeking to breach the privilege that there exists at least some evidence supporting an inference that the client retained the attorney to commit a crime or fraud. The Robb court believed this to be a proper balance between the veil of the privilege and the need to prevent crime/fraud. However, the moving party must do more than simply assert crime or fraud they must present the same evidence discussed above. In Robb, the defendant was committing ongoing fraud by falsifying the value of his gold mine. In Robb, the court found that the government met its burden of the some evidence standard because the defendant retained his attorney while "in the midst of a fraudulent scheme" and that during the scheme the attorney was the primary course of legal advice to the defendant.

Here, no fraudulent scheme has been committed. The only fraudulent scheme alleged under the Franklin Criminal Code 5.50 is implacable because as stated earlier Hammond has yet to file a claim. Additionally, Attorney Walker was retained after the burning of Hammond's building thus she had no part in the alleged crime.

Thus, the peoples request is a mere fishing expedition and they have failed to raise a sufficient influence. Further, even if they had raised such an influence per Robb the defendant is allowed to come forward with evidence that the attorney was retained for a proper purpose. Additionally, even if the people have met their burden (which they have not) the appropriate remedy would be on in camera hearing not testimony at a grand jury trial. Thus, there subpoena is at least untimely.

Lastly, it is arguable that a higher standard should be needed rather than the some evidence standard to trigger an in camera hearing. Although not controlling the court in Franklin, State v. Sawyer applies a probable cause standard requiring the people to come forward with probable cause to believe that the attorney was retained "to further a crime or fraud" in order to trigger the in camera review. In Sawyer, the court believed that this standard was not met while the proponent of breaching the privilege argued that an attorney was retained to further crime or fraud, an equally likely inference was that the attorney was "retained to ensure...that choices were informed." Here, Hammond retained Attorney Walker to ensure he made correct choices and similar to Sawyer, the alleged guilty party could have "failed to cooperate because he was afraid he might expose himself to liability with no countervailing benefit." Retaining a lawyer simply does not equal guilt. It is more prudence and good judgment.

Regardless of which standard the court applies some evidence or probable cause, the defendant is at first entitled to an in camera review and rebut the evidence prior to testifying at a grand jury. Likewise, an exception 1.6 of the FRPC has not been proven. The court must quash the subpoena duces tecum prior to an in camera review if the people have met their burden.