Class 8, 9 & 10 - Topic 8: Duty to Law

Question 1

Dishonesty, Fraud, etc. by Client or Others LSO RPC R. 3.2-7

Answer 1

• “A lawyer shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct or instruct a client or any other person on how to violate the law and avoid punishment.”

Question 2

The Lawyer as Advocate LSO RPC 5.1-1

Answer 2

• When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Question 3

Lawyer as Advocate: Binding Authorities LSO RPC 5.1-2(i)

Answer 3

• “When acting as an advocate, a lawyer shall not deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opponent.”
• “It is proper for counsel to bring forward a relevant case and then submit that it is distinguishable for whatever reason. That is fair play. It is improper to not bring forward a relevant case on the ground that it is distinguishable. That is not fair play.” (GMAC v. Isaac Estate)

Question 4

Encouraging Compromise or Settlement LSO RPC 3.2-4

Answer 4

• “A lawyer shall advise and encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and shall discourage the client from commencing or continuing useless legal proceedings.”

Question 5

Duty as Prosecutor LSO RPC 5.1-3 & Commentary

Answer 5

• R. 5.1-3 “When acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.”
• Cty [1] When engaged as a prosecutor, the lawyer’s prime duty is not to seek to convict but to see that
  justice is done through a fair trial on the merits. …

Question 6

Defender w/ a Factually Guilty Client: What you CAN Do LSO RPC 5.1-1, Cty [10]

Answer 6

“If the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly”
- take objection to the jurisdiction of the court,
- the form of the indictment
- or the admissibility or sufficiency of the evidence…
- test the evidence given by each individual witness for the prosecution
- argue that the evidence taken as a whole is insufficient to amount to proof that the accused is
guilty of the offence charged.”

Question 7

Defender w/ a Factually Guilty Client: What you CAN’T Do LSO RPC 5.1-1, Cty [10]

Answer 7

“If the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary… must not:”-
- suggest that some other person committed the offence
- call any evidence that, by reason of the admissions, the lawyer believes to be false
- set up an affirmative case inconsistent with such admissions, for example, by calling evidence in
support of an alibi intended to show that the accused could not have done or, in fact, has not done the act.”

Question 8

Agreement on Guilty Plea LSO RPC 5.1-8

Answer 8

“A lawyer for an accused or potential accused may enter into an agreement with the prosecutor about a
guilty plea if, following investigation,

• the lawyer advises the client about the prospects for an acquittal or finding of guilt;
• the lawyer advises the client of the implications and possible consequences of a guilty plea and
  particularly of the sentencing authority and discretion of the court, including the fact that the
  court is not bound by any agreement about a guilty plea;
• the client voluntarily is prepared to admit the necessary factual and mental elements of the
  offence charged; and
• the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea.”

“The public interest in the proper administration of justice should not be sacrificed in the interest of expediency.”

Question 9

Encouraging Respect for the Administration of Justice LSO RPC 5.6-1

Answer 9

• “A lawyer shall encourage public respect for and try to improve the administration of justice.”