[WSBAPT] PR discretion - charitable gift in will

[Sam Furgason]

Since it’s late, I’ll throw out a random story. A partner and I used to
have an office in Woodinville, next door to a bank branch. One day, the
bank was robbed, and the robber escaped right past our office, on foot,
unbeknownst to us until later. We had a good discussion about what if the
robber had come into the office right after the robbery and met with one
of us? What if he had disclosed he had recently robbed a bank, and wanted
us to represent him if he got arrested? Were we obligated under the rules
not to disclose his being in our office or that he had robbed a bank? We
pretty much concluded that we could not give up the potential client’s
secret under the then existing rules. That was around 1979, long before
the current RPCs, which only relatively recently came up with the
disclosure obligations. It was hypothetical (otherwise, I guess I would
still be bound not to mention it), but an amusing discussion, especially
since we concluded that that would be a clever way to get away with a bank
robbery. 

S 

 

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Doug Schafer
Sent: Thursday, January 30, 2014 6:24 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] PR discretion - charitable gift in will

 

I agree with Doug Bratt and Eric Nelsen that in my hypothetical Gus is
barred by the "ethics" rules from voluntarily revealing anything to
anybody about his communications with the PC.   But, what if Gus is served
with a subpoena to produce his file copy of the will, or is deposed to
reveal the PC's communications about his intention to ignore the
charitable bequest?  

In other words, would the evidentiary attorney-client privilege cover the
PC's communications to Gus?  If that privilege does not cover the PC's
communications, then the court should order Gus to comply with the
subpoena or answer the deposition questions.  RPC 1.6(b)(6) allows a
lawyer to reveal client information to comply with a court order.

My inclination is that the common law crime-fraud exception (CFE) to the
attorney-client privilege would apply because at the time that the PC was
communicating with Gus the PC was intending to commit a fraud.  The CFE is
generally applied by courts when the client communicated with an attorney
while intending to engage in criminal or fraudulent conduct (or intending
to conceal such past conduct).  Some courts even apply the CFE when a
client is intending to commit other unlawful conduct or to violate their
contractual obligations.

Other thoughts?

See: http://nvbar.org/sites/default/files/opinion_25.pdf
<ttp://nvbar.org/sites/default/files/opinion_25.pdf> 
http://www.jha.com/us/blog/?blogID
<ttp://www.jha.com/us/blog/?blogID%1268> 68 
http://www.evergreenethics.com/WA_CFE_cases.html
<ttp://www.evergreenethics.com/WA_CFE_cases.html> 

Doug Schafer



On 1/30/2014 2:26 PM, Eric Nelsen wrote:

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