Advocacy Ethics

Question 1

M.R. 3.3 - Generally - Ethics to Tribunal

Answer 1

• a lawyer shall not;
  1. make false statements
  2. fail to disclose controlling authority
  3. off material evidence they know is false

Question 2

M.R. 3.3(c) - how long do the duties to the tribunal last?

Answer 2

• Until the conclusion of the proceedings

Question 3

M.R. 3.3(d) - Ethics to Tribunal - Ex Parte Proceedings

Answer 3

• shall inform tribunal of all material facts known to lawyer, whether adverse or not

Question 4

What do you do when you know the client is going to lie?

Answer 4

1. Persuade the client
2. Withdrawal
3. Disclosure to the Court
4. Narrative Approach (CA-criminal)

Question 5

M.R. 1.0(m) - What is a “tribunal”?

Answer 5

• Any body acting in an adjudicative capacity

- M.R. 3.3 - Comment 1 - suggests it includes all ancillary proceedings (like depo’s)

Question 6

M.R. 4.1 - Generally - Ethics to a Third Party

Answer 6

• A lawyer shall not knowingly;
  (a) make a false statement to third party
• comment 1 - also includes misleading statements
• comment 3 - noisy withdrawal may be necessary

Question 7

M.R. 3.4 - Generally - Real Evidence

Answer 7

If physical - don’t touch, just observe (deprives the other side if you touch/move)
If document - can touch as location doesn’t really matter

Question 8

M.R. 3.4(a) - Real Evidence - Why?

Answer 8

Fairness to Opposing party, lawyer shall not;

• unlawfully obstruct
• alter/destroy/conceal

Question 9

M.R. 3.4 - Real Evidence - Privilege

Answer 9

Underlying communications are protected, as well as observations that arise from them

Question 10

Legal Malpractice Elements

Answer 10

1. attorney/client relationship existed
2. D acted negligently or in breach of K
3. such acts were proximate cause of injury
4. “but for” D’s conduct, P would have been successful
   - sometimes courts use the more lenient “substantial factor” test if the remedy sought is unjust enrichment (as opposed to compensation for loss)

Question 11

M.R. 5.1 - Responsibility of Supervisory Lawyers - Generally

Answer 11

partners, managers, and supervisory lawyers shall;

1. make reasonable efforts to ensure the firm has measure that give reasonable assurance that lawyers will conform to rules
2. make reasonable efforts to make sure their subordinate is following rules
3. be responsible for another lawyers violation if;
   (a) the lawyer orders, or knows of the conduct
   (b) knew about the issues at a time it could have been mitigated

Question 12

M.R. 5.2 - Responsibility of Subordinates - Generally

Answer 12

1. Still bound by the rules even when they were following orders
2. Does not violate if they are taking reasonable measures ordered to be taken to remedy a violation

Question 13

M.R. 3.6 - Trial Publicity - Generally

Answer 13

• prevents extra judicial statements that know/reasonably should know will be disseminated by public communications and have substantial likelihood of materially prejudicing a proceeding