3.12 Fairness to Adversary

Question 1

FAIRNESS TO OPPOSING PARTY AND COUNSEL, SHALL NOT

Answer 1

Obstruct or Counsel or Assist Obstructing Access to Evidence

Destroy or Conceal or Assist in Destroying or Concealing Evidence

Falsify or Counsel or Assist in Falsifying EvidenceUse Means of Cross Examination That

Allude to a Matter Does NOT REASONABLY Believe

Assert Personal Knowledge of the Facts (except as testimonial witness)

State Personal Opinion or Request a Person Other than the Client Refrain from Voluntarily Giving UNLESS:

Question 2

SHALL NOT Falsify or Counsel or Assist in Falsifying Evidence

Answer 2

Cannot Pay Fact Witness | May Reimburse Bona Fide Expenses

Cannot Pay Experts on Contingent Fees

Question 3

SHALL NOT Use Means of Cross Examination That

Answer 3

No Substantive Purpose but to Embarrass, Delay, or BurdenSeek to Intimidate or Humiliate Unnecessarily

NOTE: Belief or Knowledge of Veracity of Testimony DOES NOT Preclude Cross Examination

Question 4

SHALL NOT Allude to a Matter

Answer 4

Does Not Reasonably Believe Relevant or Supported by EvidenceAssert Personal Knowledge of the Facts (except as testimonial witness)

Question 5

SHALL NOT State Personal Opinion of

Answer 5

Witness
Justness of the Cause
Culpability of Civil Litigant
Guilt or Innocence of the Accused

Question 6

SHALL NOT Request a Person Other than the Client Refrain from Voluntarily Giving Personal Opinion UNLESS:

Answer 6

Relative, Employee, or Agent of Client AND

Reasonably Believes Persons Interest NOT Adversely Effected by Refraining (Would be Conflict of Interest, Inducing Third Party to Rely on Your Advice)

Question 7

FAIRNESS TO OPPOSING PARTY AND COUNSEL,SHALL NOT KNOWINGLY

Answer 7

Disobey an Obligation to the Tribunal
NOTE: May Make Open Refusal BASED on Not Having Valid Obligation

Make Frivolous Discovery Requests

Fail to Make Reasonably Diligent Effort to Comply with Proper Discovery Requests

Question 8

IMPARTIALITY AND DECORUM OF THE TRIBUNAL, SHALL NOT

Answer 8

Seek to Influence Judge, Juror, or other office by Means Prohibited by Law Communicate Ex Parte

UNLESS Authorized Communicate with Juror or Potential Juror After Discharge IF
-Prohibited
-Juror Made Known Desire NOT to be Contacted
-Communication Involves Misrepresentation, Coercion, Duress, or Harassment
NOTE: Except as Above, May Contact Juror After the Fact

Engage In Conduct Intended to Disrupt Tribunal

Question 9

ADVOCATE IN NONADJUDICATIVE PROCEEDING

Answer 9

Shall disclose that the appearance is in a representative capacity.Decision Making Body should be able to rely on the integrity of the submission.

Question 10

LAWYER SHALL NOT Act as Advocate IF Likely to be Necessary Witness UNLESS:

Answer 10

Testimony is on Uncontested Issue

Testimony Relates to Nature and Value of Legal Services OR

Disqualification would work substantial hardship on client

NOTE: ESSENTIAL MEANING = VERY, VERY, NARROW Exception Obligation to the Court > Obligation to Client Wanting Your RepresentationObligation to Client INCOMPATABLE With Fact Witness (Could be Called by Either Side)

Unless 1.7 or 1.9 Applies, the Firm is Not Imputed-Most often comes up in malpractice claims

Question 11

“TRIAL PUBLICITY, SHALL NOT Make Extrajudicial Statement:

Other Lawyers in Firm or Agency Imputed from Making Statements”

Answer 11

Knows or Reasonably Should Know

1. Will be disseminated by means of public communication AND
2. Will have substantial likelihood of Materially prejudicing and adjudicative proceeding in the matter

Applies only to lawyers participating in the case

Applies only to opinions lawyer knows will be broadcast

Requires a specific harm = all elements be met

Question 12

TRIAL PUBLICITY EXCEPTION:

Answer 12

“LIMITED: Information Reasonably Necessary MAY MAKE A BARRED STATEMENT

Reasonable Lawyer Would Believe

Required to Protect Client from Substantial Undue Prejudicial Effect

From Recent Publicity NOT Initiated by Client or Lawyer

NOTE: Defamation Laws Apply”

Question 13

Gentile v. Nevada State Bar (1991)

Answer 13

Requires the Standard Now Used for Preventing Material Prejudice

However, the rules must be made clear, as the safe harbors do.

Question 14

MAY Disclose [Safe Harbors from Above]

Answer 14

Claim, Offense or Defense Involved

EXCEPT IF PROHIBITED BY LAW Identities of Persons Involved, Public Record, Confirm an Investigation is in Progress, Scheduling or Result of Step in Litigation, A Request for Assistance in Obtaining Evidence, and Warnings where there is reason to believe exists likelihood of substantial harm

Question 15

MAY Disclose [Safe Harbors from Above] IN CRIMINAL CASE:

Answer 15

Identity, Residence, Occupation, and Family Status of the Accused

Aid in the Apprehension

Fact, Time, and Place of ArrestPROSECUTORS

MUST Exercise Reasonable Care to Make Sure Persons Assisting in the Prosecution (law enforcement, etc.) Do Not Make Statements Prosecutor is Barred from Making

Question 16

SPECIAL RESPONSIBILITIES OF PROSECUTORS in Criminal Case SHALL

Answer 16

Refrain from Prosecuting Knows is Not Supported by Probable Cause (Low Bar > Non-Frivolous)

Reasonable Efforts to Assure Accused Advised of Rights and Reasonable Opportunity to Get Counsel

NOT seek to obtain from an unrepresented accused a waiver of pretrial rights

Timely Disclosures of ALL Evidence (Including Mitigating) EXCEPT When Relieved by Protective Order [SCOTUS, Standard Does Not Apply to Grand Jury Submissions | Its An Issue]

When KNOWS of new, credible and material evidence creating a reasonable likelihood that CONVICTED DEFENDANT Did NOT COMMIT:

When KNOWS of Clear and Convincing Evidence establishing defendant in jurisdiction was convicted but did not commit =

Question 17

PROSECUTOR SHALL NOT Subpoena a Lawyer to Present Evidence About Former Client

Answer 17

UNLESS Prosecutor REASONABLY BELIEVES:

Information is Not Protected by Applicable Privilege

Essential to Successful Completion of Ongoing Investigation or Prosecution; AND

No Other Feasible Alternative= Last Resort

Question 18

PROSECUTOR SHALL When KNOWS of new, credible and material evidence creating a reasonable likelihood that CONVICTED DEFENDANT Did NOT COMMIT:

Answer 18

“Promptly Disclose to Proper Authority ANDIF Convicted in Jurisdiction

Promptly Disclose to Defendant UNLESS Court Orders Delay AND

Under Take Further Investigation or Make Reasonable Efforts to Cause Investigation to Determine If Convicted But Innocent”

Question 19

PROSECUTOR SHALL When KNOWS of Clear and Convincing Evidence establishing defendant in jurisdiction was convicted but did not commit =

Answer 19

SHALL seek to remedy the conviction. [See that Justice is Done]