Advocacy; Communication with Third Parties; Public Statements

Question 1

Conduct Before Tribunal - General

Answer 1

As an advocate, an attorney must refrain from hostile or abusive conduct as well as disruptive conduct

May not improperly influence the judge, jurors, or other officials (e.g., bribes)

Question 2

Conduct Before Tribunal - Civil Litigation

Answer 2

Must not bring frivolous claims or put forth frivolous defenses

• There must be a basis in fact and law for all claims and defenses
• If there is no supporting law, attorney must make a good faith argument argument for an extension, modification, or reversal of existing law.
• Claims may not be brought to embarrass, delay, or harass a third person.

Question 3

Conduct Before Tribunal - Criminal Defense

Answer 3

May require prosecution to prove every element of the crime (even if attorney knows the client is guilty)

Question 4

Condcut Before Tribunal - Duty of Candor

Answer 4

• During tribunal proceedings, must not knowingly make false statements of fact or law
• Must correct false statements previously made to the tribunal, typically through a post-submission brief or letter to the court
• Disclosures
  
  • Must disclose controlling adverse to lawyers position
  • Adverse facts: Need not voluntarily disclose unfavorable facts; should truthfully present the most favorable facts
  • Response to discovery request: Must respond to a legitmate discovery request with reasonable diligence

Question 5

Conduct Before Tribunal - Duty of Fairness to Opp Party

Answer 5

• Prosecutorial duty: Must disclose any exculpatory evidence or mitigating evidence
• Witness inducement: May not improperly pay witnesses
  • Expert witnesses: Can be paid for their time, but payment cannot be contingent upon a particular outcome
  • Non-expert witnesses: Cannot be paid for their time or testimony, but may be reimbursed for travel and meal costs

Question 6

Conduct Before Tribunal - Witness Perjury

Answer 6

• May not counsel or assist a witness to testify falsly
• When lawyer knows testimony is or will be false: Cannot ooffer testimony
• When lawyer reasonably believes testimony is or will be false
  
  • Civil cases: Need not call the witness
  • Criminal cases: Defendant has constiutional right to testify
• If witness testifies and lies, and attorney knows that witness lied, attorney must take reasonable remedial measures to correct it.
  
  • Try to persuade the witness to correct his/her false testimony
  • If witness will not do so, attorney inform judge that the witness’s testimony was untruthful

Question 7

Communication During Rep. - Truthfulness in Statement to Others

Answer 7

• Must not knowingly make a false statement of material fact or law
• Negotiations: Statements about the value or price of an object of negotiation or amount of money that would be acceptable are not considered to be material facts.

Example 31: Attorney offers an opening bid during settlement negotiations, asserting that his client expects at least $50,000. Attorney may do this even if his client gave him the authority to accept less than $50,000.

Question 8

Communication During Rep. - Comm. with Persons Represented by Control

Answer 8

• May not communicate with the person represented by counsel; must go through his/her attorney
  
  • This rule applies even if the individual initiates the conversation with the attorney.
• If person’s lawyer gives permission, attorney can communicate directly.
• This rule does not apply to two parties who communicate with each other, even if both are represented by counsel.

Question 9

Communication During Rep. - Comm. with Persons Unrepresented by Counsel

Answer 9

• May not pretend to be neutral or disinterested; must explain that he/she represents the client o May not allow unrepresented party to think that attorney represents him/her

Example 32: Attorney is preparing a contract for Client and a third party. Attorney must make clear to the third party that Attorney represents Client and no one else, and must be explicit about his/her role in the transaction.

Question 10

Communication During Rep. - Comm. during Legislative Hearings

Answer 10

Must disclose that he/she is appearing in a representative capacity for the client; may not pretend to be neutral

Question 11

Communication During Rep. - Comm. through the Media

Answer 11

• May not make public statements that might prejudice a pending trial
• May make statements about matters contained in the public record (though client must give permission because of the duty of confidentialiy )
• Criminal cases: May make public statements about the offense charged, whether a suspect is in in custody, information needed to apprehend a suspect, whether the suspect might present a danger to the public