[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

enforcement interest is at stake, the harm of precluding critical evidence that is unavailable
by any other means outweighs the potential disincentive to forthright communication. In
my view, the cost of silence warrants a narrow exception to the rule that the attorney-client
privilege survives the death of the client. . . .
Problem
6-6. In a privileged conversation, Client tells Martyn where he was on the night in
question. Can Client now be compelled to testify as to his whereabouts? What if Client has
died?
D. Express or Implied Authority and Waiver
Clients can decide for themselves whether to allow the use or disclosure of confidential
information. Utilitarians note that the legal system requires information to function, and
therefore, clients who wish to take advantage of the system’s protections or allowances must
agree as a condition of using the system to supply it with some information. Deontologists
characterize client consent as the client’s autonomous authorization to disclosure or use of
the information. Agency law rests on such a consensual foundation and protects extensions
of autonomy by granting individuals the opportunity to act through others.
1. Express or Implied Authority Model Rules 1.0(e), 1.6 RLGL §§ 61-62
In re Pressly
628 A.2d 927 (Vt. 1993)
PER CURIAM.
Respondent Thomas Pressly appeals from a decision of the Professional Conduct Board
recommending a public reprimand as discipline for his misconduct in violating [Rules 1.6
(a) and 8.4 (a)].
In 1989, respondent, a member of the Vermont bar since 1975, represented
complainant in connection with relief from abuse and divorce proceedings. Complainant
informed respondent that her husband had a history [of] alcoholism, battering, and abuse.
After a hearing at which she was represented by respondent, complainant was granted a
temporary order requiring her husband to refrain from abusing her, and, by stipulation of
the parties, temporary custody of the couple’s two children with supervised visitation by the
father. About a month later, respondent filed a divorce complaint on his client’s behalf.
The parties negotiated an agreement under which complainant would retain temporary
custody of the children and her husband would be allowed unsupervised visitation.
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