3.11 Communications with Tribunal Flashcards
SHALL NOT Make a Frivolous Filing
Requires Basis in Law or Fact
NOT Frivolous Even Though Lawyer Believes Client Will Not Prevail
Good Faith Arguments for Extension, Modification, or Reversal of LawRequires Lawyer to Inform Themselves of the Facts
Lawyer must sign
Role as Adivosr
May be necessary to inform the client of alternatives to litigation as part of proffering candid advice.
Filings For PROPER PURPOSES ONLY
SHALL Make REASONABLE Efforts to Expedite Litigation CONSISTENT with Interest of the ClientSometimes Client Want the Process Slowed Down, BUT Cannot do it for improper purposes (i.e. the client does not want to pay judgment)
NOT Proper for Lawyer to Slow Solely for Convenience of Advocate
CANDOR TOWARDS THE TRIBUNAL [Any Adjudicative Proceeding]SHALL NOT KNOWINGLY
Make ANY False Statement of Law or Fact
Offer Evidence Lawyers [Knows] to be False
Offer Evidence Lawyers [Knows] to be False
“Cannot Use a Lying Witness
Lawyers Standard = Reasonable Belief in Veracity
Lawyer should seek to persuade client evidence should NOT be offered BUT If that fails MUST Refuse to Offer Evidence
CAN Use the Witness to Testify About Matters About Matters Where the Witness Will Tell the Truth Witness Does Give False Testimony
NEEDS TO Confer with witness / client, try to get them to correct themselves on the stand
If that fails, lawyer must make record clear that lawyer did not offer evidence and / or took reasonable measure to correct the record.”
Criminal Defendants Constitutional Right to Testify Themself
Lawyers Standard Higher = Actual Knowledge of Veracity
Actual Knowledge Can Be Inferred from Circumstances
Lawyer CANNOT Ignore Obvious Falsehood
USUAL ADVICE = Informed Consent | Record for Lawyer
- Inform Constitutional Right to Testify
- Inform No Right to Testify Falsely
- If Client Insists on False Testimony, Seek permission to withdraw for ethical requirement.
REQUIREMENTS OF RULE SUBORDINATE To Court Orders … May need to have client give testimony in NARRATIVE Form: Please tell us your story. Then Lawyer Not Offering
CANDOR TOWARDS THE TRIBUNAL [Any Adjudicative Proceeding] SHALL
Correct MATERIALLY False Statement of Law or FactHigher importance of information is for practical purposesDoes NOT License Either False Statements or Materially False Statements
Responding to Questions from Tribunal
SHALL NOT Reveal Information Relating to Representation of the Client UNLESS Client Gives Informed Consent HOWEVER
SHALL NOT Make False Statement to Tribunal If Asked = It is a delicate response, but asked CANNOT misrepresent to tribunal
No Obligation to Bring Up Adverse FactsGenerally and Ex Parte
“Generally, the lawyer discovers the facts in confidence or possibly under privilege.
EX PARTE PROCEDING DISCLOSURES …
- SHALL Disclose ALL MATERIAL FACTS
- Different Standards B/C it is Extraordinary Relief w/o Representation for Other Side, Just Judges Consideration
NOTE: Failure to do so may create a cause of action against lawyer by the party receiving adverse judgment.”
Affirmative Obligation to Bring Up Directly Adverse Jurisdictional Precedent
SHALL NOT KNOWINGLY Fail is the Standard
- Even if not brought up by the opposition
- Must address such precedent, but does not require you to explain the significance.
- [Law is public knowledge, not confidence of client.]
- [Failure of fact limited to proceedings, but failure to apply the proper law has further ramifications.]
Affirmative and Absolute Obligation to Protect Tribunal (i.e. from jury tampering)
KNOWS Client is engaging or intends to engage in criminal or fraudulent conduct related to the proceedingsSHALL Take appropriate remedial measures, including disclosure to the court IF Necessary
DURATION OF OBLIGATIONS
A proceeding is concluded when a final judgment has been affirmed on appeal or the time for review has passed.
