Different Roles of a Lawyer

Question 1

If lawyer controls means, must she consult client on everything

Answer 1

no , only reasonably consult requirement; consider time requirements if can’t find client

Question 2

Frivolous claim exceptions

Answer 2

A good faith argument for an extension, modification, or reversal of existing law is not frivolous.

Question 3

Frivolous claims before legislative committee

Answer 3

This prohibition does not extend to situations other than legal proceedings in which a lawyer may represent a client. such as an appearance before legislative committee.

Question 4

action is not frivolous if lawyer thinks she will lose if

Answer 4

lawyer expects to develop critical evidence only through discovery.

Question 5

A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to

Answer 5

require that every element of the case be established beyond a reasonable doubt, even if there is not a factual or legal basis for challenging the element. MRPC 3.1.

Question 6

Can you delay to realize more financial gain for client?

Answer 6

Realizing a financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

Question 7

Duty of candor ends..

Answer 7

The duty of candor applies through the conclusion of the proceeding, which is defined as when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed. MRPC 3.3(c), cmt. 13. It applies even if compliance requires disclosure of information otherwise protected by the ethical duty of confidentiality. MRPC 3.3(c).

Question 8

Under certain circumstances, however, a failure to make a disclosure would be the equivalent of an affirmative misrepresentation.

Answer 8

Thus, if the lawyer fails to correct what she knows to be a court’s erroneous understanding of a fact, such failure would be improper.

Question 9

ex parte proceeding exceptions to disclosure (no opposing counsel)

Answer 9

In an ex parte proceeding (e.g., an application for a temporary restraining order), a lawyer must 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 lawyer’s client. MRPC 3.3(d).

Question 10

Contingency expert fees

Answer 10

Expert fees may not be contingent on the outcome of the matter. MRPC 3.4, cmt. 3.

Question 11

Prohibited Speech to Jury

Answer 11

MRPC 3.4(e). When addressing the jury, a lawyer is prohibited from alluding to evidence that is ruled inadmissible by the court. The lawyer is also prohibited from (i) asserting personal knowledge of facts in issue except when testifying as a witness, or (ii)stating a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused. MRPC 3.4(e). The lawyer may make an argument about any of the above based on the evidence in the case, however.

Question 12

requirements to ask someone to keep quiet

Answer 12

A lawyer must not request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (i) the person is a relative or an employee or other agent of the client; and (ii) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information. MRPC 3.4(f).

Question 13

Examiners frequently test the subtle distinction between knowing and reasonably believing that evidence is false. The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false.

Answer 13

A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier-of-fact.

*CANNOT offer anything you don’t KNOW to be false for criminal defendants

Question 14

full disclosure of perjury?

Answer 14

Reasonable remedial measures can include confidentially advising the client of the lawyer’s duty of candor and urging the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the lawyer is required to take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the lawyer must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected as confidential by the Model Rules. MRPC 3.3, cmt. 10.

Question 15

Narrative exception to perjury:

Answer 15

Narrative required by local law

In some jurisdictions, courts have required lawyers to present the accused as a witness or to allow the accused to give a narrative statement if the accused so desires, even if the lawyer knows that the testimony or statement will be false.

Question 16

Can state retry defendant for perjury after trial?

Answer 16

Narrative required by local law

In some jurisdictions, courts have required lawyers to present the accused as a witness or to allow the accused to give a narrative statement if the accused so desires, even if the lawyer knows that the testimony or statement will be false.

Question 17

lawyer can withold information from client if

Answer 17

There are some times when a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that such disclosure would harm the client. MRPC 1.4, cmt. 7. Note that a lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person. In some instances, local rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. A lawyer is required to comply with such rules or orders. See MRPC 3.4(c).

Question 18

Administrative ex parte communications prohibited and allowed with judiciary

Answer 18

A routine and customary request, such as a communication dealing with the scheduling of a hearing, is not prohibited, but a communication made for the purpose of having a matter assigned to a particular judge is prohibited.

Question 19

Look for questions placing a lawyer with good intentions in ex parte communication situations.

Answer 19

The lawyer is subject to discipline even if no harm is intended or results.

Question 20

Exceptions to misstatmeent of fact

Answer 20

-puffing, t (e.g., estimates of price or value placed on the subject of a transaction; a party’s intentions as to an acceptable settlement of a claim; and the existence of an undisclosed principal, except when nondisclosure of the principal would constitute fraud).

Question 21

When you must diclose facts to authorities

Answer 21

A lawyer must also not fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Model Rule 1.6, regarding confidentiality. MRPC 4.1(b). See also MRPC 1.2(d) (prohibiting lawyers from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent).

Question 22

If lawyer has to withdraw because of implication in drime,

Answer 22

The lawyer may notify the affected third person of the fact of the withdrawal. I

Question 23

exception to communication prohibition with represented people

Answer 23

Note that the rule does not apply to prohibit communication with a represented person, or an employee or agent of such person, with regard to any matter outside the representation. The rule also does not prohibit communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. MRPC 4.2, cmt. 4.

Question 24

exceptions to talking to employees of represented org clients

Answer 24

1) In general

In the case of a represented organization, a lawyer is prohibited from communicating with a constituent (e.g., employee) of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. MRPC 4.2, cmt. 7.

2) Former constituent

Consent of the organization’s lawyer is not required for communication with a former constituent. MRPC 4.2, cmt. 7.

Question 25

Prohibition on dealing with unrepresented person?

Answer 25

The Model Rules do not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. As long as the lawyer has explained that he represents an adverse party and is not representing the person, the lawyer may inform the unrepresented person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature, and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations. MRPC 4.3, cmt. 2.

Question 26

Receipt of inadvertently sent documents

Answer 26

A lawyer who receives a document or electronically-stored information relating to the representation of the lawyer’s client and who knows or reasonably should know that the document or information was inadvertently sent must promptly notify the sender. . The Model Rules do not address whether the document must be returned or whether any privileges attached to the document have been waived. These issues are generally addressed by local law. MRPC 4.4, cmt. 2.

Question 27

Trial Publicity Prohibition

Answer 27

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

Question 28

Trial Publicity Exceptions

Answer 28

b. Exception

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 that was not initiated by the lawyer or the lawyer’s client. Such a statement must be limited to such information as is necessary to mitigate the recent adverse publicity. MRPC 3.6(c).

c. Facts about the case may be discussed

The Model Rules permit a lawyer participating in the investigation or litigation of a matter to state:

i) The claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;
ii) Information that is contained in a public record;
iii) That an investigation of a matter is in progress;
iv) The scheduling or result of any step in litigation;
v) A request for assistance in obtaining evidence and information necessary to the case; CAN ASK TO HELP FIBD WITNESSES
vi) 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 interest; and
vii) The identity, residence, occupation and family status of a criminal defendant, information necessary to aid in apprehending an accused person in a criminal case, the fact, time, and place of arrest; and the identity of investigating and arresting officers or agencies and the length of the investigation. CAN SAY WHERE DEFENDANT LIVES TO FIND.

Question 29

Publicity statement bans

Answer 29

i) The character, credibility, reputation, or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
ii) In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;
iii) The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
iv) Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
v) Information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; and
vi) The fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.