duties of lawyer to third parties and opponents Flashcards
duty of truthfulness in statements to others
(1) no knowing false statements of fact to anyone in course of representation
(2) “puffery” is allowed (estimations of price or value; statements of party’s intention as to settlement)
(3) lawyer must disclose facts when necessary to avoid assisting client in crime or fraud
rules regarding communications with a person who is represented by counsel
GENERAL RULE: lawyer must not communicate about subject of representation of a client with any person they know to be represented by counsel in the matter, whether or not that person is a party to the matter
EXCEPTIONS:
(1) person’s counsel gave permission
(2) lawyer is authorized by law or court order to make communication
EXCLUDED FROM THE RULE:
- discussions of topics unrelated tot he matter
- communications between the parties
- communications with prospective client who seeks second opinion or replacement counsel
rule on communicating with employees of represented organizations
when an org has representation, the lawyer must get consent of organization’s counsel before communicating with a current employee or other constituent of organization IF that employee is:
(1) a person who supervises, directs, or regularly consults with the org’s lawyer about the matter
(2) a person who has authority to obligate organization w/r to the matter
or
(3) the person’s act or omission in connection with the matter may be imputed to the org for purposes of civil or criminal liability
RULE WHEN EMPLOYEE HAS OWN COUNSEL: if the employee has their own counsel, all you need is consent from that person’s counsel
RULE WHEN IT IS A FORMER EMPLOYEE: no consent needed (but no violation of legal rights of the org, such as inquiring into privileged information)
rule on communicating with unrepresented person
In general, a lawyer representing a client MAY communicate with unrepresented person on the matter (or person they reasonably believe is unrepresented)
EXCEPTIONS
– lawyer may not state or imply lawyer is disinterested
– lawyer must make reasonable efforts to correct misunderstandings about lawyer’s role in the matter
– no legal advice tot hat person if the person’s interest conflict with client’s interest (unless advice is to get counsel)
rule against heavy handed tactics
In representing a client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.
Additionally, a lawyer must not use methods of obtaining evidence that violate a third person’s legal rights (for example, attorney-client privilege).
rule when you receive documents or ESI sent by mistake
if you know or reasonably should know the info is privileged and relates to info relating to representation of your case:
(1) immediately stop reviewing or using the document or ESI
(2) promptly notify sender
(3) abide by sender’s instructions to return or destroy the document or electronically stored info
duties to opposing party
(1) no hiding evidence or advising person to hide or flee so as not to be available as a W
(2) no abusing discovery procedures
(3) no making threats to gain advantage
(4) no filing suits merely to harass or maliciously injure another
(5) generally no offers to pay Ws
rules regarding opponent’s access to evidence
(1) no falsify evidence
(2) no obstruction of access to evidence by removing, or altering, or concealing etc.
(3) no counseling others to obstruct access to evidence
if your client brings you the gun he used to kill his dad and he is charged with murder and you receive subpoena for production of physical evidence, what do you do?
physical evidence not privileged or under confidentiality
= turn it over
can you be compelled to testify about the location of the evidence that the client communicated to you?
no - privileged
exception: if you moved or altered the location, you may have to disclose it
when can you advise a person not to give information to opposing parties
In general, you can advise person to refrain from voluntarily giving info to opponent or other party WHEN
(1) info is relevant in pending civil matter
(2) person is a client or client’s relative, current or former employee or agent
and
(3) lawyer reasonable believes the person’s interests will not be harmed by withholding the information
rule against lawyer paying witnesses
in general, it is improper to pay W for their testimony
permitted payments:
(1) reasonable travel and incidental expenses incurred in testifying or attending
(2) reasonable fees for experts
(3) reasonable compensation for lost earnings
