Duties of Fairness & Preserving Dignity of the Court

Question 1

Duty of Fairness General Rules

Answer 1

You have a duty to behave honestly in all dealings, both in and out of legal practice. Even when there are no explicit
rules, you must act to promote public confidence in the
integrity and efficiency of the legal system and profession.

Question 2

Additional Duties of Fairness

Answer 2

1. Dealing fairly with others.
2. Dealing with the press.

Question 3

In dealing fairly with others, what does CA forbid:

Answer 3

CA forbids using threats to bring disciplinary, administrative, or criminal proceedings as leverage in a civil dispute.

Question 4

Situations to which the duty of fairness applies:

Answer 4

1. Documents sent inadvertently.
2. Communication with adversaries and third parties.
3. Communication with represented entities.

Question 5

Rules for documents sent inadvertently

Answer 5

• If you know it was inadvertently sent, or sent intentionally but anonymously, you must stop reading and notify opposing counsel.
• Pending resolution, you must not copy, disseminate, or use the document to your advantage; you will be disqualified!

Question 6

During litigation, you open an E-mail from opposing counsel and find an outline of your opponent’s strategy for deposing a key witness attached. May you forward it to
your client?

Answer 6

No

Question 7

In a document intentionally sent, may you mine “metadata”?

Answer 7

Yes, that’s just fully considering disclosed material.

Question 8

Rule for Communication with adversaries and third parties.

Answer 8

You must not lie to people or mislead them as to your interests. You must not violate the legal rights of a person to obtain evidence, or use means with no purpose but to delay, burden, or embarrass them.

Question 9

Rule for Communication with represented entities.

Answer 9

You must not communicate with a person you know is represented by counsel on the subject of your inquiry without consent of his counsel unless authorized by law or when giving a second legal opinion.

Question 10

Your client claims that a corporation’s chemicals gave her child leukemia. Must you have the corporation counsel’s consent before you interview its site manager?

Why?

And CA Caveat

Answer 10

• Yes
• The prohibition covers any current employee whose communication might bind or be imputed to the organization or constitute an admission on its part.
• In CA consent is required for interviews of an officer, director or managing agent.

Question 11

Rule for dealing with the press and it’s exceptions:

Answer 11

• You have a duty not to interfere with a defendant’s right to a fair trial. You and your agents must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the client

Question 12

Exceptions to not making out of court statements to the press (when you can)

Answer 12

Exceptions are for:

• matters in the public record or routine booking information,
• warning the public,
• informing them of an ongoing investigation,
• and statements required to protect your client from substantial undue prejudice from:
  
  • recent publicity, not self-initiated
  • prosecutors
    
    • and their aides must not make comments that have a substantial likelihood of heightening public condemnation of the accused.

Question 13

DUTIES FOR PRESERVING THE DIGNITY OF THE COURT AND ADDITIONAL DUTIES TO THE PROFESSION AND PUBLIC

Answer 13

1. Duty to preserve the decorum and impartiality of the tribunal.
2. Duty to expedite cases.
3. Duties to the Profession and Public
4. Duties to Subordinate Lawyers

Question 14

Rules for Duty to preserve the decorum and impartiality of the tribunal.

Answer 14

1. Don’t try to influence anybody improperly
2. No “chicanery”:
3. Preserve the tribunal’s decorum:

Question 15

Rules for Don’t try to influence anybody improperly.

Answer 15

• Before and during trial you must not talk to any prospective or impaneled juror.
• After trial is over you may interview consenting jurors.

Question 16

What is the rule to no chicanery?

Answer 16

Trickery in trial

• E.g., referring to inadmissible material or matters
  unsupported by evidence, asserting personal knowledge of facts at issue.

Question 17

The rule to Preserve the tribunal’s decorum

Answer 17

Refrain from abusive or obstreperous conduct, belligerence, or theatrics. The rules state: “A lawyer may stand firm against abuse by a judge but should avoid reciprocation….”

Question 18

Duty to expedite cases: ABA v CA

Answer 18

• Under ABA Rules, you have an affirmative duty to expedite cases.
• In CA, you must not delay cases to harass an adversary, or for your own personal gain or convenience.

Question 19

Further duty of fairness

Answer 19

• You have a duty to follow valid procedural rules and court orders, unless you are making a goodfaith challenge to their validity.
• Do not abuse or obstruct discovery.

Question 20

Additional duties to the profession and public.

Answer 20

1. To protect the public from incompetence, the unauthroized or unliscenced practice of law is forbidden
   
   • Practice while suspended or not admitted is a violation unless allowed by law, a local court order, or limited exceptions.
2. Policing misconduct.

Question 21

A Texas firm wrote and marketed in California E-Broke software, which asks users to input answers, determines what bankruptcy schedules and exemptions to file, and
prepares petitions. Is this unauthorized practice of law in California?

Answer 21

Yes

Question 22

Rules on Multijurisidictional Practice: CA & ABA

Answer 22

• ABA rules on multi jurisdictional practices (“MJP”) allow you to temporarily practice out-of-state if:
  
  1. you are in good standing and
  2. you associate with a locally admitted lawyer who actively participates in the matter, or
  3. the services relate to alternative dispute resolution, or
  4. the matter is reasonably related to your home state practice and the forum does not require a pro hac vice appearance.
• CA structures its more restrictive rules governing out-of-state lawyers by practice area. They generally require the lawyer to register with the
  CA Bar, pay dues, get continuing legal education, and be subject to CA ethics rules.
• “Registered foreign legal consultants” are limited to advising on the law of their country of licensure.

Question 23

Policing Misconduct: ABA & CA Rules

Answer 23

• Under ABA Rules you must report to “the appropriate professional authority” any other lawyers or judges violation of the Rules in any legal or non-legal context if it raises a substantial question as to that person’s honesty, trustworthiness, or fitness as a lawyer.
• CA does not require external reporting, but can discipline you for knowing about a colleague’s violation and doing nothing to prevent it. (E.g., counsel the lawyer, or tell a supervisor.) CA also requires you to self-report if charged with a felony, convicted of serious crimes, or found civilly liable for fraud or breach of fiduciary duty, disciplined or sanctioned, or sued for malpractice three times in a year.

Question 24

Subordinates. If you are under the control or supervision of another attorney, e.g., a senior partner, who ratifies or orders you to take an action violating an ethical rule, is that OK?

Answer 24

It Depends on if it is a clear violation

1. Your ethical responsibility if it is a clear violation:
   
   • You are subject to discipline
2. Your ethical responsibility if it is a debatable problem:
   
   • The supervisor is solely responsible.

Question 25

Your supervising partner’s ethical responsibility:

Answer 25

If he ratified the action or knew of the conduct and failed to take action, he is in violation.

Question 26

Rules for managing partners

Answer 26

Managing partners must also make reasonable efforts to ensure that the conduct of all firm employees or outsourced workers comports with the professional obligations of a lawyer, including non-lawyer assistants