(5) Professional Responsibility: Duty to Others

Question 1

Types:

Duties to the Court

Answer 1

1. Duty of Candor to the Court
2. Witness Perjury
3. Ex Parte Communications with the Court
4. Filing Frivolous Claims & Contentions
5. Obstructing or Altering Discoverable Evidence
6. Improper Influence
7. Proper Discovery Requests & Compliance
8. Payments to Witnesses
9. Lawyer as Witness

Question 2

Duty of Candor to the Court

Duties to the Court

Answer 2

A lawyer cannot engage in dishonest or fraudulent conduct. A lawyer cannot knowingly (a) make a false statement of fact or law to a tribunal; (b) fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (c) fail to disclose to a tribunal controlling legal authority known to be adverse (unless disclosed by opposing counsel); OR (d) offer or use evidence that the lawyer knows to be false.

Question 3

Rule w/CA Difference:

What must a lawyer do if false material evidence is offered?

Duties to the Court - Duty of Candor to the Court

Answer 3

If a lawyer knows/learns that they have offered false material evidence (including witness testimony) the lawyer must take reasonable remedial measures including disclosure to the court if necessary. In CA, disclosure of confidential information is prohibited unless consent is received from the client.

Question 4

Answer & why:

Can a lawyer refuse to offer evidence?

Duties to the Court - Duty of Candor to the Court

Answer 4

YES, a lawyer may refuse to offer evidence that the lawyer reasonably believes is false except for the testimony of a criminal defendant.

Question 5

Witness Perjury

Duties to the Court

Answer 5

A lawyer cannot call a witness that he knows will commit perjury (testify falsely).

If a lawyer reasonably believes but doesn’t know that the testimony is false the lawyer has the discretion to offer or not the testimony.

A lawyer’s knowledge that evidence is false may be inferred from the circumstances.

If a lawyer later learns that a witness committed perjury the lawyer must take reasonable remedial measures. (see duty of candor to the court)

Question 6

Rule w/CA differences:

Witness Perjury - Exception

Duties to the Court

Answer 6

A Defendant in a criminal case has the constitutional right to testify on their own behalf. A lawyer should: (1) try to persuade the client that the evidence shouldn’t be offered; (2) attempt to withdraw from the case; (3) if the attempt is unsuccessful then the lawyer must tell the court including disclosing confidential information if necessary. In CA, the lawyer must allow the D to testify in a narrative fashion because disclosure of confidential information is prohibited absent the clients consent.

Question 7

Ex Parte Communications with the Court

Duties to the Court

Answer 7

A lawyer cannot seek to influence the court or communicate the merits of a case without all parties present (ex parte), unless the attorney is authorized by law to do so. During an authorized ex parte proceeding a lawyer must inform the tribunal of all material facts known that will enable the tribunal to make an informed decision (whether or not the facts are adverse).

Question 8

Rule & Extension Rule & CA differences:

Filing Frivolous Claims & Contentions

Duties to the Court

Answer 8

A lawyer has a duty to investigate the claims/defenses/arguments filed on behalf of a client and cannot file frivolous positions with the court. A good faith argument for an extension, modification or reversal of existing law is not deemed frivolous.

In CA, the rule also prohibits actions, defenses, positions and appeals that lack probable cause AND are intended to harass or maliciously injure.

Question 9

How is the duty to investigate determined?

Duties to the Court - Filing Frivolous Claims and Contentions

Answer 9

Is measured by what a reasonable attorney would do in a similar circumstance.

Question 10

Under the ABA what can a trial lawyer not do during trial?

Duties to the Court - Filing Frivolous Claims and Contentions

Answer 10

Under the ABA: At trial a lawyer shall not (a) allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence; (b) assert personal knowledge of facts in issues except when testifying as a witness; OR (c) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.

Question 11

Obstructing or Altering Discoverable Evidence

Duties to the Court

Answer 11

A lawyer cannot unlawfully (a) obstruct another party’s access to evidence; (b) alter, destroy, or conceal a document/material with evidentiary value; OR (c) counsel or assist another person to do any such act (previously stated).

Question 12

Improper Influence

Duties to the Court

Answer 12

A lawyer cannot seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.

Question 13

Improper Influence - False Evidence Rule

Answer 13

A lawyer cannot falsify evidence, counsel or assist a witness to testify falsely or offer an unlawful inducement to a witness (i.e., improper payments or causing a person to become “unavailable”).

Question 14

Improper Influence - Requesting a Party to not speak to the opposing side

Duties of the Court

Answer 14

A lawyer cannot request a person (other than a client) to refrain from voluntarily giving information to another party unless: (1) the other person is a relative, employee, or other agent of the client; AND (2) the lawyer reasonably believes that silence will not adversely affect the person’s interests.

Question 15

Proper Discovery Requests & Compliance (ABA Only)

Duties to the Court

Answer 15

ABA Rule: A lawyer must make a reasonably diligent effort to comply with legally proper discover requests by an opposing party. And a lawyer cannot make a frivolous discovery request.

CA Rule: There is no rule. A violation of a civil or criminal discovery rule is not an ethical violation.

Question 16

Payments to Witnesses

Duties to the Court

Answer 16

A lawyer cannot offer an unlawful inducement to a witness or make payments to a witness contingent upon the content of the testimony or outcome of the case.

However a lawyer may pay a witness (unless prohibited by law) for: (a) expenses reasonably incurred (i.e., travel expenses, hotel, meals during the times the witness is required to be present at trial); (b) reasonable compensation for loss of time; OR (c) a reasonable fee to an expert witness.

Question 17

Rule w/CA difference & Exception:

Lawyer as Witness

Duties to the Court

Answer 17

A lawyer cannot act as trial counsel when that lawyer is likely to be a necessary witness unless (a) the testimony relates to an uncontested issue; (b) the testimony relates to the nature and value of legal services rendered in the case; (c) the lawyers disqualification would create a substantial hardship on the client [ABA only]; (d) In CA, the lawyer has informed written consent of the client.

A lawyer may act as a counsel where another lawyer in same firm is likely to be a necessary witness unless a conflict of interest exists.

Question 18

Types of:

Duty of Fairness to Adversaries

Answer 18

1. Communication with a Represented Person
2. Trial Publicity - Extrajudicial Statements to the Public
3. Special Rules for Prosecutors
4. Threats of Criminal, Administrative or Disciplinary Charges

Question 19

Rule & Exceptions w/CA differences

Communication with a Represented Person

Duty of Fairness to Adversaries

Answer 19

When a lawyer knows a person is represented by counsel in a matter. The lawyer cannot speak to that person concerning the matter unless; (a) the lawyer has permission from person’s lawyer; (b) the communications are authorized by law or a court order; OR (c) In CA, for communications with a public official, board committee or body.

*Subject to the exceptions above, this rule also covers any employee or agent of an organization whose communication might bind or be imputed to the represented organization.

Question 20

Trial Publicity - Extrajudicial Statements to the Public

Duty of Fairness to Adversaries

Answer 20

A lawyer participating in an investigation or litigation cannot make extrajudicial statements to the public on that matter, which (1) the lawyer knows or should know; (2) will be disseminated by means of public communication; AND (3) will have a substantial likelihood of materially prejudicing the case or influencing jurors/potential jurors.

Question 21

Trial Publicity - Extrajudicial Statements to the Public

Can subordianates of a Prosecutor make extrajudicial statements that a prosecutor is unable to make?

Duty of Fairness to Adversaries

Answer 21

NO, prosecutors must exercise reasonable care to prevent others under their supervision/direction from making extrajudicial statements that the prosecutor would be prohibited from making.

Question 22

Trial Publicity - Extrajudicial Statements to the Public Exceptions

Duty of Fairness to Adversaries

Answer 22

Several exceptions exist including statements: (1) to protect the client from substantial undue prejudice from recent publicity that was not self-initiated – the statement must be limited as is necessary to mitigate the adverse publicity; (2) of the claim, offense, defense or identity of persons (unless prohibited by law; (3) information in a public record; (4) to inform the public of an ongoing investigation; (5) requesting assistance in obtaining evidence; (6) warning of danger when a likelihood of substantial harm exists; AND (7) certain information in a criminal case – identity/residence/occupation/family status of the accused, info necessary to apprehend the accused, fact/time/place of arrest, identity of investigating/arresting officers and agencies and length of investigation.

Question 23

Special Rules for Prosecutors

Duty of Fairness to Adversaries

Answer 23

Prosecutors (1) may only proceed with a case if probable cause exists; (2) must timely disclose any exculpatory or mitigating evidence (evidence that tends to negate guilt) known to the prosecutor within a sufficient time to allow the D to properly prepare for trial. An exception exists when a protective order of the court relieves the prosecutor of his responsibility; (3) make reasonable efforts to assure that the accused has been advised of the right to (and procedure for obtaining) counsel and has been given reasonable opportunity to obtain counsel; (4) must seek to remedy a conviction when they know of clear and convincing evidence establishing that a convicted D did not commit the crime; (5) must promptly disclose new credible and material evidence that creates a reasonable likelihood that a convicted D did not commit the crime (if the conviction was in the prosecutors jurisdiction they must make reasonable efforts to do an investigation to determine if the D was wrongly convicted); AND (6) a prosecutor cannot seek to obtain from an unpresented accused a waiver of important pretrial rights (i.e., the right to a preliminary hearing).

Question 24

Are prosecutors in criminal cases held to a higher standard?

Duty of Fairness to Adversaries

Answer 24

YES, prosecutors in criminal cases are often held to a higher standard because they have a duty to administer justice.

Question 25

Rule & when it does not apply

Threats of Criminal, Administrative or Disciplinary Charges (CA only)

Duty of Fairness to Adversaries

Answer 25

CA Rule: A lawyer cannot threaten to present criminal administrative or disciplinary charges to obtain an advantage in a civil dispute.

This rule does not apply to: (a) a threat to bring a civil action; (b) actually bringing such charges; (c) stating that the lawyer will pursue all available remedies; OR (d) a threat to initiate a contempt proceeding for failing to comply with a court order.

ABA Rule: There is no rule.