Candor

Question 1

Construction of the “Trilemma”

Answer 1

Candor to the COURT stands above confidentiality and competence and diligence, though all are very important.

Question 2

MR 3.1

Criminal Defense

Answer 2

Meritorious Claims and Contentions
Officer: “basis in law or fact…that is not frivolous” for bringing or defending suit
Advocate: In criminal proceeding, “may defend the proceeding as to require that every element of the case be established”

Question 3

MR 1.0:

Knowingly

Answer 3

Actual knowledge, sometimes inferred from circumstances

Question 4

MR 1.0:

Reasonably Believes

Answer 4

Reasonably prudent and competent lawyer would believe

Question 5

Potential Response of Lawyer

If Suspicion of Lying Client

Answer 5

– Can’t allow you to testify
– Would have to reveal in court
– Would be allowed to impeach
– Will try to withdraw if you insist on lying

Question 6

FRCP 11:

Witness Preparation

Answer 6

Applies to all court filings
After inquiry reasonable under circumstances:
1) it is not being presented for improper purpose, such as to harass, causing unnecessary delay, or needlessly increased cost of litigation;
2) the claims, defenses and other legal contentions are warranted by existing law or by non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
3) the factual contentions have evidentiary support, or likely will have evidentiary support after reasonable opportunity for further investigation and discovery and
4) denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on believe or lack of info

Question 7

FRCP 26:

Certification

Answer 7

Applies to every discovery request, response, or objection
To lawyers knowledge after reasonable inquiry, it is:
– Complete and correct as of the time made
– Warranted by existing law session on frivolous argument for extending such modifying/nonverbal’s argument for establishing new law
– Not interposed for any improper purpose, such as to harass, unnecessary delay, or needlessly increased cost of litigation; and
– Neither in reasonably nor unduly burdensome or expensive, consider need to case, prior discovery in case, managing controversy, and importance of the issues at stake

Question 8

MR 3.3(a)(1)

Future

Answer 8

Future: a lawyer actively participates

Lawyer cannot knowingly make false statement of fact or law

Question 9

MR 3.3(a)(1)

Past

Answer 9

Past: lawyer actively participates

Lawyer cannot knowingly failed to correct his or her full statement

Question 10

MR 3.3(b)

Answer 10

Future or past: lawyer is not involved at all
(Bribing, tampering, nonclient perjury, etc.)
“Criminal or fraudulent conduct relating to the proceeding” (no lawyer statement or offer evidence required)
“Reasonable remedial measures”

Question 11

MR 3.3

Comments 10-11

Answer 11

“Remonstrate”
“Withdraw” (If possible)
“Reveal” (If necessary)

Question 12

MR 3.3(a)(3)

Future

Answer 12

Future: lawyer passively involved
Lawyer cannot offer false evidence (No materiality requirement)
“Persuade” and “Refuse” per comment 6

Question 13

MR 3.3(a)(3)

Past

Answer 13

Past: lawyer passively involved
Lawyer knowingly offered material false evidence
Must take “reasonable remedial measures”

Question 14

US v Shaffer Equipment

Answer 14

Expert witness lacks credentials/expertise
When do the lawyers learn/ how long they let it go on
(Becomes a candor violations)

Question 15

MR 3.3(a)(3)

Criminal Defense

Answer 15

Officer: can’t introduce evidence lawyer knows to be false
Advocate: may refuse to offer evidence, other than defendant’s testimony in criminal proceeding, lawyer reasonably believes is false
Example:
In civil suit lawyer may refuse to let defended testify.
In criminal suit, lawyer must let the defendant testify unless layer KNOWS it’s a lie.

Question 16

Nix v Whiteside

Answer 16

“Something metallic”

D lies about the seeing gun

Question 17

FRCP 11 & MR’s

Answer 17

MR 3.1:
– Requires non-frivolous basis fact to defend/bring suit
MR 3.2 & comment one:
–reasonable efforts to”expedite litigation” and a good faith lawyer would see “some substantial purpose other than delay”
MR 4.4(a): prohibits means with “no substantial purpose” other than embarrassment, delay, or burdening third-party

Question 18

Discovery & MR

Answer 18

MR 3.1: no frivolous contentions in”process” (comment one)
MR 3.2 & comment one: reasonable efforts to “expedite litigation” & “some substantial purpose other than delay”
MR 3.4 (d): “reasonably diligent efforts to comply” with discovery rules & no “frivolous discovery requests”
MR 4.4 (a): prohibits means with “no substantial purpose” other than embarrassment, delay, or burdening third party

Question 19

Consequences for Lack of Candor

Answer 19

– Bar discipline for MR violation
– FRCP sanctions
– – Fines
– – Issue sanctions
– Malpractice?

Question 20

Three Approaches to Candor

Answer 20

– Tell me everything
– I don't even want to know 
––BUT:
– – Vigorous defense still allowed
– – Trials rare
– – Defendants don't usually testify
– Guided tour
––BUT:
–– You can always wordsmith
– – Vigorous defense still out
– – Trials rare
– – Defendants don't usually testify