Duties and Bounds of Lawyer's Representation: Conduct of Litigation/Candor to Tribunal/Fairness to Opposing Party and Counsel/Improper Contact w Jurors and Court/Trial Publicity

Question 1

What is the rule w regards to frivolous claims or defenses?

Answer 1

A lawyer MUST NOT make frivolous claims or defenses

Question 2

What is the rule w regards to expediting litigation?

Answer 2

Lawyer MUST make REASONABLE EFFORT to expedite litigation consistent with the interests of the client

Question 3

Under the RPC, what are the rules re: a lawyer’s duty of candor to the tribunal (4)?

Answer 3

Under RPC, a lawyer must not KNOWINGLY –>
1. make a FALSE STATEMENT of MATERIAL FACT or LAW

2. Fail to CORRECT a FALSE STATEMENT of MATERIAL FACT or LAW previously made by the lawyer
3. Fail to DISCLOSE CONTROLLING LEGAL AUTHORITY that is:
   (i) DIRECTLY ADVERSE to position of client; AND
   (ii) not disclosed by opposing counsel
4. Offer FALSE EVIDENCE

NOTE –> attorney has no duty to disclose adverse facts, just controlling law

Question 4

With regards to lawyer’s duty of candor to tribunal, when do duties end?

Answer 4

Duties CONTINUE until –>

• final judgment has been affirmed on appeal, OR
• time for taking appeal has passed

Question 5

In general, what rules apply with regards to false evidence?

Answer 5

If lawyer KNOWS evidence to be false:
- Lawyer MUST NOT offer evidence he KNOWS is false
- if client insists on offering evidence that lawyer KNOWS is false, lawyer must 1st try to convince client that evidence should not be offered
- if that fails, lawyer MUST refuse to offer the evidence (in civil case)
- in a criminal case, under RPC the lawyer MUST disclose information to set matter straight, even if the info is privileged or confidential
NOTE: in the above situations, lawyer MAY withdraw, but is not REQUIRE to withdraw

if lawyers REASONABLE BELIEVES evidence to be false:
In civil case –> lawyer may refuse to offer
In criminal case if repping Crim def –> lawyer MAY NOT refuse to offer

Question 6

What rules apply to the special situation of criminal D who insists on testifying falsely?

Under RPC?

Under California rule?

Answer 6

All jeans –> criminal D has a constitutional right to testify. So he must be allowed to testify if lawyer REASONABLY BELIEVES testimony is false

HOWEVER –> if lawyer KNOWS testimony is false:

Under RPC:

1. lawyer must try to convince D not to testify
2. if that fails, lawyer MAY ask tribunal for permission to withdraw;
3. As a last resort, lawyer must disclose info to tribunal to set things straight, even if privileged or confidential

Under CA law:

1. lawyer must try to convince D not to testify
2. if that fails, lawyer MAY ask tribunal for permission to withdraw;
3. if that fails, lawyer may call D as witness and question him in ordinary manner up to point at which D knows he will lie. From that point on, he may allow D to testify in narrative fashion
4. HOWEVER –> lawyer MAY NOT use false testimony in closing argument

Question 7

What is the rule if lawyer later finds out that false evidence was offered?

Under RPC?

Under CA law?

Answer 7

RPC –>
1. If lawyer discovers she has offered false evidence, she must take REASONABLE REMEDIAL MEASURES
2. First, lawyer must talk to client (or witness) to warn them of lawyer’s duty to reveal false evidence, and to seek their cooperation in withdrawing the evidence
3. if that fails, lawyer may ask to withdraw
4 .As a last resort, lawyer must disclose info to tribunal to set things straight, even if privileged or confidential

California –>

• CA rules are silent as to lawyer’s duty to take remedial measures
• HOWEVER –> lawyer is prohibited from misleading judge/jury with false statements.