July 2010-MPT 01-Score 60.97-Typed-ID 043

1) Under the Franklin Rules of Professional Conduct, Carol Walker was prohibited from disclosing communications with her clients

a. Ms. Walker's client, William Hammond, did not consent or impliedly authorize revealing any confidential communications

Under Franklin Rule of Professional Conduct (FRPC) 1.6(a), an attorney is prevented from revealing her client's confidential communications "unless [her] client gives informed consent" or because "disclosure [was] impliedly authorized in order to carry out representation" of the client.

Her client, Mr. Hammond, has neither consented to nor impliedly authorized any revealing of their confidential communications.

b. The exceptions to the FRPC for death/harm or injury to financial interests do not apply FRCP 1.6(b) authorizes voluntary disclosure (1) to prevent reasonably certain death or 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 or has resulted from the client's commission or a crime or fraud in furtherance of which the client has used his lawyer's services."

I. There is no risk of death or injury

First, there has been no showing or allegation, nor is there any reasonable suspicion, that any failure to disclose communication with Mr. Hammond will result in any forthcoming death or injury. The interests at stake are purely financial and revolve around allegations of crime or fraud relating to the destruction of Mr. Hammond's building and the insurance proceeds he may collect. Therefore, they implicate prong 1.6(b)(2).

II. The facts do not give rise to suspicion of substantial injury to financial interests

There is no evidence to show that disclosure of Ms. Walker's communications with Mr. Hammond would "prevent, mitigate, or rectify substantial injury to the financial interest or property of another". No finding of fact has been made that Mr. Hammond took out his insurance policy as anything other than a typical preventative measure in the typical course of business. Taking out an insurance policy in and of itself should not arouse suspicion sufficient to trigger any exception to attorney-client privilege; to do so would be contrary to presumptive public purpose by potentially help disincentivize the purchasing of insurance.

III. The requirements set out in the FRCP are voluntary only

The FRCP explicitly states that an attorney may disclose confidential communication relevant to the above two conditions; it does not impose any requirement to do so. Reading the statute on its face in the absence of any other interpretive authority, it would appear that Ms. Walker is prevented from voluntarily disclosing anything outside the scope of these exceptions.

2) Under the Franklin Rules of Evidence, Carol Walker has a privilege not to disclose confidential communications with her clients

a. The FRE privilege to assert confidentiality

While the Franklin Rules of Evidence (FRE) generally state that a "client has...privilege to refuse to disclose and to prevent any other person from disclosing confidential communication made for facilitating the rendition of professional legal services" (503(b)), FRE 503(b)(3) makes it clear that there is an assumption the "privilege may be claimed by...The person who was the lawyer...at the time of the communication" for the sake of a client.

Nevertheless, an exception states that this privilege may not be asserted "if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud" (503(d)(1)).

I. The exception is inapplicable in the instant case

The mere coincidence of having financial difficulties, having purchased insurance, and having a fire burn down one's building does not in and of itself indicate knowing commission of a crime or fraud, let alone understanding of what constitutes either. Franklin's relevant statutes for arson with intent to defraud and for fraud itself both require intent, which must be must be asserted and demonstrated to some degree in order to trigger application of this exception.

Moreover, merely assuming that Ms. Walker's services were obtained in order to cover for a crime or fraud may disincentivize the use of legal services or open client communication altogether.

b. Defending the privilege

Furthermore, the Official Advisory Committee has amended comments to the FRE, the most apposite of whioch is [3], that "communication between a client and lawyer is presumed to be privileged" (emphasis added). The party moving against the privilege has a burden to show, by a preponderance of the evidence, that a communication should not be privileged. In practice, if the party claiming lack of privilege presents sufficient evidence to raise a substantial question about the communication's status, the opposing party must make a showing to the court regarding that communication in its defense.

Franklin courts have not determined whether a "sufficient showing" should mean "some evidence," the standard adopted by the 15th Circuit in U.S. v. Robb, or the higher "probable cause" standard of the Columbia Supreme Court, which has persuasive authority in Franklin.

I. The privilege is defensible in the instant case

Whether or not a Franklin court adopted the "some evidence" or "probable cause" standards, the facts of both Robb and Sawyer indicate that a much more suspicious circumstance would be necessary to compel Ms. Walker's testimony than currently exists. In Sawyer, the "probable cause" stemmed from preexisting convictions for corruption, while in Robb, it stemmed from intentional misrepresentation to drive up prices. Moreover, in both cases the court, reviewing the situations in camera, refused to breach the privilege.

Here, Mr. Hammon had a potentially (indeed, likely) legitimate purpose in purchasing insurance, and the mere coincidence of his financial situation, the fire, and his insurance policy do not give rise to the same level of suspicion. If there is even less reason for suspicion in this case, a court in Franklin should not find that attorney-client confidentiality can be so easily swept aside.