Question about Prof Resp/Legal Ethics,...

[superfanny007]

I was doing a practice question in Emanuel's (my exams tomorrow) and came across a hypo: Lawyer A overhears Lawyer B & her client, C, discussing C's pending litigation. Lawyer A overhears Lawyer B mentioning she (B) stole a document that has been missing for sometime. Does Lawyer A have an obligation to report Lawyer B to the disciplinary board?

The answer assumes that 8.3 applies (having knowledge of MRPC violation that goes to substantial q of lawyer's honesty/fitness), but doesn't mention an attorney-client privilege/confidentiality problem. I wasn't sure how one would argue that in this instace. Does an attorney-client privilege attach to attorney's who overhear privileged information between another lawyer and a non-client? If so, is their duty under 8.3 relieved? Thanks.(Emailed the professor as well, but don't know if he'll reply in time).

[Johnny Holiday]

hello

[vap]

Too late for your exam, but I think there is no privilege.  Lawyer B is not a person who can assert the privilege because Lawyer B did not make a statement in the lawyer-client relationship with the purpose of obtaining legal advice.  Now, if Lawyer B told Lawyer A about B's misconduct for the purpose of obtaining counsel from A, there would be a privilege.  But there is no A-C relationship here between A and B.  The fact that A overhears B doesn't create a privilege.