Chapter 3: Advocate

Question 1

Rule 3.1 Meritorious Claims and Contentions

Answer 1

a) A lawyer shall not:
(1) bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person;* or
(2) present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.
(b) A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, or involuntary commitment or confinement, may nevertheless defend the proceeding by requiring that every element of the case be established

Question 2

Rule 3.2 Delay of Litigation

Answer 2

In representing a client, a lawyer shall not use means that have no substantial* purpose other than to delay or prolong the proceeding or to cause needless expense.

Question 3

Rule 3.3 Candor Toward the Tribunal*(A)(1)-(3)

Answer 3

a) A lawyer shall not:
(1) knowingly* make a false statement of fact or law to a tribunal* or fail to correct a false statement of material fact or law previously made to the tribunal* by the lawyer;
(2) fail to disclose to the tribunal* legal authority in the controlling jurisdiction known* to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly* misquote to a tribunal* the language of a book, statute, decision or other authority; or
(3) offer evidence that the lawyer knows* to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence, and the lawyer comes to know* of its falsity, the lawyer shall take reasonable* remedial measures, including, if necessary, disclosure to the tribunal,* unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e) and rule 1.6. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes* is false.

This includes failing to correct a material misstatement of law includes citing as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional, or failing to correct such a citation previously made to the tribunal* by the lawyer.

Question 4

Rule 3.3 Candor Toward the Tribunal(B)

Answer 4

b) A lawyer who represents a client in a proceeding before a tribunal* and who knows* that a person* intends to engage, is engaging or has engaged in criminal or fraudulent* conduct related to the proceeding shall take reasonable* remedial measures to the extent permitted by Business and Professions Code section 6068, subdivision (e) and rule 1.6.

Question 5

Rule 3.3 Candor Toward the Tribunal(D)

Answer 5

(d) In an ex parte proceeding where notice to the opposing party in the proceeding is not required or given and the opposing party is not present, a lawyer shall inform the tribunal* of all material facts known* to the lawyer that will enable the tribunal* to make an informed decision, whether or not the facts are adverse to the position of the client.

Question 6

Rule 3.4 Fairness to Opposing Party and Counsel(A)(B)(C)

Answer 6

A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence, including a witness, or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person* to do any such act;
(b) suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce;

c) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

Question 7

Rule 3.4 Fairness to Opposing Counsel(D)

Answer 7

d) directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case. Except where prohibited by law, a lawyer may advance, guarantee, or acquiesce in the payment of:
(1) expenses reasonably* incurred by a witness in attending or testifying;
(2) reasonable* compensation to a witness for loss of time in attending or testifying; or
(3) a reasonable* fee for the professional services of an expert witness;

Question 8

Rule 3.4 Fairness to Opposing Counsel(E)(F)(G)

Answer 8

e) advise or directly or indirectly cause a person* to secrete himself or herself or to leave the jurisdiction of a tribunal* for the purpose of making that person* unavailable as a witness therein;
(f) knowingly* disobey an obligation under the rules of a tribunal* except for an open refusal based on an assertion that no valid obligation exists; or
(g) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the guilt or innocence of an accused

A violation of a civil or criminal discovery rule or statute does not by itself establish a violation of this rule.

Question 9

Rule 3.5 Contact with Judges, Officials, Employees, & Jurors (a)

Answer 9

judge, official, or employee of a tribunal.* This rule does not prohibit a lawyer from contributing to the campaign fund of a judge or judicial officer running for election or confirmation pursuant to applicable law pertaining to such contributions.

Question 10

Rule 3.5 Contact with Judges, Officials, Employees, and Jurors(B)

Answer 10

A lawyer shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before the judge or judicial officer, except:
(1) in open court;
(2) with the consent of all other counsel and any unrepresented parties in the matter;
(3) in the presence of all other counsel and any unrepresented parties in the matter;
(4) in writing* with a copy thereof furnished to all other counsel and any unrepresented parties in the matter; or
(5) in ex parte matters.

Question 11

Rule 3.5 Contact with Judges, Officials, Employees, and Jurors(D)(E)(F)

Answer 11

(d) A lawyer connected with a case shall not communicate directly or indirectly with anyone the lawyer knows* to be a member of the venire from which the jury will be selected for trial of that case.
(e) During trial, a lawyer connected with the case shall not communicate directly or indirectly with any juror.
(f) During trial, a lawyer who is not connected with the case shall not communicate directly or indirectly concerning the case with anyone the lawyer knows* is a juror in the case.

Question 12

Rule 3.5 Contact with Judges, Officials, Employees, and Jurors(G)

Answer 12

g) After discharge of the jury from further consideration of a case a lawyer shall not communicate directly or indirectly with a juror if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known* to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, or duress, or is intended to harass or embarrass the juror or to influence the juror’s actions in future jury service

Question 13

Rule 3.5 Contact with Judges, Officials, Employees, and Jurors(H)(I)

Answer 13

h) A lawyer shall not directly or indirectly conduct an out of court investigation of a person* who is either a member of a venire or a juror in a manner likely to influence the state of mind of such person* in connection with present or future jury service.
(i) All restrictions imposed by this rule also apply to communications with, or investigations of, members of the family of a person* who is either a member of a venire or a juror.

Question 14

Rule 3.5 Contact with Judges, Officials, Employees, and Jurors(J)(K)(L)

Answer 14

(j) A lawyer shall reveal promptly to the court improper conduct by a person* who is either a member of a venire or a juror, or by another toward a person* who is either a member of a venire or a juror or a member of his or her family, of which the lawyer has knowledge.
(k) This rule does not prohibit a lawyer from communicating with persons* who are members of a venire or jurors as a part of the official proceedings.
(l) For purposes of this rule, “juror” means any empaneled, discharged, or excused juror.

Question 15

Rule 3.6 Trial Publicity (a)

Answer 15

(a) A lawyer who is participating or has participated in the investigation or litigation of
a matter shall not make an extrajudicial statement that the lawyer knows* or
reasonably should know* will (i) be disseminated by means of public
communication and (ii) have a substantial* likelihood of materially prejudicing an
adjudicative proceeding in the matter.

Question 16

Rule 3.6 Trial Publicity(b)

Answer 16

lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law,
the identity of the persons* involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary
thereto;
(6) a warning of danger concerning the behavior of a person* involved, when there is reason to believe* that there exists the likelihood of substantial* harm to an individual or to the public but only to the extent that dissemination by public communication is reasonably* necessary to protect the individual or the public; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, general area of residence, and occupation of the accused;
(ii) if the accused has not been apprehended, the information
necessary to aid in apprehension of that person;*
(iii) the fact, time, and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

Question 17

Rule 3.6 Trial Publicity(c)(d)

Answer 17

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a
reasonable* lawyer would believe* is required to protect a client from the
substantial* undue prejudicial effect of recent publicity not initiated by the lawyer
or the lawyer’s client. A statement made pursuant to this paragraph shall be 2 limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a law firm* or government agency with a lawyer subject
to paragraph (a) shall make a statement prohibited by paragraph (a).

Question 18

Rule 3.7 Lawyer as Witness

Answer 18

(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless:
(1) the lawyer’s testimony relates to an uncontested issue or matter;
(2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or
(3) the lawyer has obtained informed written consent* from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office
by which the lawyer is employed.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm* is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.

Comment:

This rule does not apply to other adversarial proceedings. This rule also does not apply in non-adversarial proceedings, as where a lawyer testifies on behalf of a client in a hearing before a legislative body

Question 19

Rule 3.8 Special Responsibilities of a Prosecutor(a)(b)(c)(d)

Answer 19

The prosecutor in a criminal case shall:
(a) not institute or continue to prosecute a charge that the prosecutor knows* is not supported by probable cause;
(b) make reasonable* efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable* opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights unless the tribunal* has approved the appearance of the accused in propria persona;
(d) make timely disclosure to the defense of all evidence or information known* to the prosecutor that the prosecutor knows* or reasonably should know* tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence,
except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;* and
(e) exercise reasonable* care to prevent persons* under the supervision or direction of the prosecutor, including investigators, law enforcement personnel, employees
or other persons* assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under rule 3.6.

Question 20

Rule 3.8 Special Responsibilities of a Prosecutor(f)(g)

Answer 20

(f) When a prosecutor knows* of new, credible and material evidence creating a reasonable* likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable* efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(g) When a prosecutor knows* of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the
defendant did not commit, the prosecutor shall seek to remedy the conviction.

Question 21

Rule 3.9 Advocate in Nonadjudicative Proceedings

Answer 21

A lawyer representing a client before a legislative body or administrative agency in connection with a pending nonadjudicative matter or proceeding shall disclose that the
appearance is in a representative capacity, except when the lawyer seeks information from an agency that is available to the public

Question 22

Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges

Answer 22

(a) A lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.
(b) As used in paragraph (a) of this rule, the term “administrative charges” means the filing or lodging of a complaint with any governmental organization that may order
or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.
(c) As used in this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more persons* under civil law, whether or not an action has been commenced, and includes an administrative
proceeding of a quasi-civil nature pending before a federal, state, or local governmental entity