Duties in Litigation, Continued / Duties of a Prosecutor / Prosecutorial Misconduct

Question 1

Rule 3.5 – Impartiality and Decorum of the Tribunal

Rule 3.5(a):

Answer 1

• You shall not seek to influence a judge, juror prospective juror or other official by means prohibited by law
• E.G. – Bribery, attempt to influence a juror (absolutely no contact with juror including anyone working in attorney office)

Question 2

Rule 3.5(b):

Answer 2

• You shall not communicate ex parte
• with a judge, juror, prospective juror or other official during the proceeding
• unless authorized to do so by law or court order

Question 3

Rule 3.5(c): Interaction with the juror after discharge of case

Answer 3

• You shall not communicate with a juror or prospective juror after discharge of the jury, if:
  
  1. The communication is prohibited by law or court order;
  2. The juror has made known a desire not to communicate; or,
  3. The communication involves misrepresentation, coercion, duress or harassment

Question 4

Rule 3.5(d):

Answer 4

• You shall not engage in conduct disruptive to a tribunal

Question 5

Rule 3.6(a) – Trial Publicity

Answer 5

• As a lawyer in a case, you shall not make an extrajudicial statement,
• that you know or reasonably should know will be publicized; and,
• will have a substantial likelihood of materially prejudicing the proceedings
• (Comment 5 has good examples of what this is)

Question 6

Rule 3.6(b):

Answer 6

• Notwithstanding Rule 3.6(a), you may state:
  
  • Benign facts
  • Public record
  • Procedure
  • Warning of danger if reasonable likelihood of substantial harm (consistent with Rule 1.6(b)(1) and Tarasoff)

Question 7

Rule 3.6(c) – The Right to Mitigate

Answer 7

• You may make a statement you reasonably believe is required to protect your client from the substantial undue prejudicial effect of recent publicity not initiated by you or your client.
• Caveat: The statement must be limited to that information necessary to mitigate the recent adverse publicity
• (Rule allows remedial action if client is harmed by an improper extrajudicial statement).

Question 8

Rule 3.6(d) – Imputation

Answer 8

• No lawyer associated in a firm or government agency with a lawyer subject to Rule 3.6(a) shall make a statement prohibited by paragraph (a).
• In other words, you can not circumvent Rule 3.6 through a third person

Question 9

Sensitivity to Extra-Judicial Speech

Answer 9

• Criminal jury trials are the most sensitive to extrajudicial speech.
• Civil trials may be less sensitive
• Non-jury or administrative hearings may be even less affected

Question 10

Rule 3.7(a) – Lawyer as Witness

Answer 10

• Sets forth the general rule:
  
  • You may not serve as a client’s advocate in a matter in which you are likely to be a necessary witness
• The Exceptions:
  
  1. The testimony relates to an uncontested issue;
  2. The testimony relates to the terms and value of the attorney fee; or,
  3. Disqualification would work substantial hardship on the client

Question 11

Rule 3.7(b):

Answer 11

• A lawyer may act as an 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 (an improper conflict of interest).
• E.G. – it would be improper where there is likely to be substantial conflict between the testimony of the client and that of the lawyer / witness.

Question 12

Rule 3.8(a):

Answer 12

• Prosecutors in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.
• Note: this is a stricter standard than the non-frivolous standard in Rule 3.1. A criminal charge must be more than non-frivolous. It must be supported by probable cause.

Question 13

Rule 3.8(b):

Answer 13

• A prosecutor in a criminal case shall 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 retain counsel

Question 14

Rule 3.8(c):

Answer 14

• A prosecutor in a criminal case shall not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing
  
  • NOTE: This prohibition does not apply if the defendant is in pro per and has waived counsel with approval of the court

Question 15

Rule 3.8(d) – The Duty to Disclose Exculpatory Evidence

Answer 15

• The prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information that tends to negate the guilt of the accused or mitigates the offense; and,
• In connection with sentencing, the prosecutor shall disclose to the defense and the tribunal all unprivileged mitigating information known to the prosecution unless relieved of this responsibility by protective order of the court

Question 16

The Brady Duty

Answer 16

• The prosecutor must inform the defendant of evidence that tends to negate guilt or mitigate punishment
• The prosecutor must turn over evidence that can be used to impeach government witnesses
• The prosecutor must follow through on leads regarding possible exculpatory evidence

Question 17

Rule 3.8(e):

Answer 17

• A lawyer shall not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
  
  • The information isn’t protected by the a/c privilege; and,
  • There is no other feasible alternative to obtain the information

Question 18

Rule 3.8(f):

Answer 18

• A prosecutor in a criminal case shall, except for statements necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose,
• refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused; and,
• A prosecutor shall exercise reasonable care to prevent others associated with a prosecutor in a criminal case from making a statement prohibited under Rule 3.6

Question 19

Rule 3.9 – Legislative and Administrative Proceedings

Answer 19

• If a lawyer is representing the claimant, the Rules of Professional Conduct apply to the lawyer’s conduct in the proceedings
• Lawyers have a duty to advise such agencies that they are present in a lawyer capacity

Question 20

Rule 4.1 – Transactions with Persons Other Than Clients

Answer 20

• In the course of representing a client a lawyer shall not knowingly:
  
  • Make a false statement of material fact or law to a third person; or,
  • Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6

Question 21

Rule 4.2 – Communications with Persons Represented by Counsel

Answer 21

• In representing a client, you shall not communicate about the subject of the representation
• with a person you know to be represented by another lawyer in the matter,
• unless you have the consent of the other lawyer or are authorized to do so by law or by court order

Question 22

Rule 4.3 – Dealing with Unrepresented Persons

Answer 22

• In dealing on behalf of a client with a person who is not represented by counsel,, you shall not state or imply that you are disinterested
• If you know or have reason to know that a person misunderstands your role, you must take reasonable efforts to correct the misunderstanding
• You shall not give legal advice to an unrepresented person, other than advice to secure counsel,
  
  • if you know or reasonably should know
  • that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client

Question 23

Rule 4.4 – Respect for Rights of Third Persons

Rule 4.4(a):

Answer 23

• In representing a client,
• you shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person,
• or use methods of obtaining evidence that violate the legal rights of such a person

Question 24

Rule 4.4(b):

Answer 24

• A lawyer who receives a document relating to the representation of the lawyer’s client
• and knows or reasonably should know that the document was inadvertently sent
• shall promptly notify the sender
• E.G. – Fax example