Candor and Fairness in Litigation

Question 1

Rule 3.3(a)(1): Statements

Answer 1

• You shall not knowingly make a false statement of fact or law to a tribunal; or,
• Fail to correct a false statement of material fact or law you previously made to the court.
• Policy Rationale:
  
  • Misleading advocacy is dishonesty toward the tribunal and contrary to a just result
  • Lawyers have a special duty as an officer of the court to avoid conduct that undermines the adjudicative process and a special obligation to protect a tribunal against criminal or fraudulent conduct

Question 2

Rule 3.3(a)(2): Deals with Legal Cases

Answer 2

• You shall not knowingly fail to disclose to the tribunal
• legal authority in the controlling jurisdiction
• known by you to be directly adverse to your client’s position
• and which hasn’t been raised by the adversary

Question 3

Rule 3.3(a)(3): Evidence

Answer 3

• You shall not knowingly offer evidence that you know to be false; and,
• If you, your client, or a witness you have called to testify has offered material evidence and you come to know of its falsity, you shall take remedial measures, including, if necessary, disclosure to the tribunal

Question 4

Rule 3.3 NOTE

Answer 4

• The duties in 3.3(a) only extend to evidence that you offer.
• The rule does not require that you correct false testimony/evidence of the adversary

Question 5

Easy as 1-2-3

(3.3(a)(1-3))

Answer 5

• Counsel not to take the stand. If the defendant insists on testifying, you must accede to the demand.
• Counsel to testify truthfully. If the defendant persists in giving false testimony, remonstrate regarding the consequences of perjury and the remedial measures you will be forced to take.
• Request permission for a “narrative” so as to avoid assisting the defendant in the perpetration of a fraud

Question 6

Rule 3.3(b):

Answer 6

• If you are representing a client in an adjudicative proceeding
• and you know that a person intends to engage, is engaging or has engaged
• in criminal or fraudulent conduct related to the proceeding,
• you shall take reasonable remedial measures including, if necessary, disclosure to the tribunal
• Caveat:
  
  • Disclosure is always last resort!
  • Exhaust all lesser alternatives first!

Question 7

Rule 3.3(c):

Answer 7

• The duties stated in Rule 3.3(a) and (b) continue to the conclusion of a proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6
• “Conclusion of the Proceeding”
  
  • Final judgment affirmed on appeal, an acquittal, or the time for review has passed

Question 8

Rule 3.3(d):

Answer 8

• In an ex parte proceeding,
• you shall inform the court of all material facts known to you that will enable the court to make an informed decision,
• whether or not the facts are adverse

Question 9

Rules 3.1 and 3.2

Answer 9

• Rule 3.1 – Meritorious Claims and Contentions
• Rule 3.2 – Expediting litigation.
• A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of a client.
• Test: Would a competent lawyer acting in good faith regard the course of action as having some substantial purpose other than delay?

Question 10

Rule 3.4 – Fairness to Opposing Party and Counsel

Answer 10

• Success of the judicial process is dependent upon fairness in litigation

Question 11

Rule 3.4(a):

Answer 11

• You shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value
• Nor shall you counsel or assist another person to do any such act

Question 12

Rule 3.4(b):

Answer 12

• You shall not falsify evidence,
• counsel or assist a witness to testify falsely,
• or offer an inducement to a witness that is prohibited by law

Cannot “knowingly” assist in the production of false testimony or other evidence.

Question 13

At issue: Preparing a witness to testify vs. “shaping” testimony

Answer 13

• Preparation: The challenging and often over looked process of helping a witness translate his/her knowledge to the unnatural, often counterintuitive, language of question and answer.

Question 14

Coaching: Telling a witness what to say

Answer 14

• You have crossed the line if, any time, you put your own words in the witness’ mouth

Question 15

Proper Witness Preparation:

Answer 15

• Answer only the question asked
• Answer only what you understand/remember/know
• Give only honest answers
• Do not speculate
• Do not volunteer
• Keep your cool and dress appropriately

Question 16

How to deal with suspected Witness Coaching in a Deposition Setting

Answer 16

• No substitute for knowledge of the facts
• Use a brick-by-brick approach
• Paint the witness into a corner
• Stock your arsenal with relevant court rules…

Question 17

Rule 3.4(c):

Answer 17

• You may not knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.
• E.g. – You can not fail to pay fines / costs or to comply with a court order or set procedure such as discovery
• You have the right to challenge an order but only through the legal process and you must comply with a final order

Question 18

Rule 3.4(d): Discovery

Answer 18

• You shall not, in pre-trial procedure,
  
  1. Make a frivolous discovery request; or,
  2. Fail to make reasonably diligent efforts to comply with the legally proper discovery requests of an opposing party.

Question 19

Rule 3.4(e):

Answer 19

• When in trial you may not:
  
  1. Refer to irrelevant matters;
  2. Refer to inadmissible evidence;
  3. Make assertions of personal knowledge; or,
  4. Make assertions of personal opinion.

Question 20

Rule 3.4(f):

Answer 20

• You shall not request a person other than a client to refrain from giving relevant information to another party, unless:
  
  • The person is a relative or employee or other agent of the client; and,
  • You reasonably believe that the person’s interests will not be adversely affected by refraining from giving such information
• The only person an attorney can instruct is your client, not a witness