Duties Owed to Non-Client

Question 1

Duties Owed to Non-Client

Answer 1

DUTIES OF:

1. CANDOR TO THE PUBLIC
2. DIGNITY OF THE PROFESSION
3. CANDOR TO THE COURT
4. FAIRNESS TO YOUR ADVERSARY
5. PRESERVING DIGNITY TO THE COURT

Question 2

DUTIES OF CANDOR TO THE PUBLIC & DIGNITY OF THE PROFESSION:

Answer 2

1. ADVERTISING
2. SOLICITATION

Question 3

Advertising refers to:

Answer 3

a lawyer’s communication with the public at large.

Question 4

Basic Rule for Advertsising

Answer 4

Must not be false or misleading

Question 5

What does it mean for an advertisement to not be false or misleading?

Answer 5

• Don’t mislead or omit material information.
• Don’t raise unjustified expectations or make unverifiable comparisons.

Question 6

CA presumes improper any ad that:

Answer 6

Guaranties, Warranties or Predicition (GWP)

• No testimonials or endorsements may be used unless there is an express disclaimer that they are not a GWP.

Question 7

Claims of legal specialties general rule

Answer 7

You can explain your fields of practice, such as “practice limited to federal courts.” But do not advertise claims of specialization unless you are a “certified specialist”

Question 8

Claim of Legal Specialites: ABA v CA

Answer 8

The CA Board of Legal Specialization requires the “4 E’s”:

• Experience,
• an Examination,
• Education, and
• Evaluations.

ABA Rules allow certification by approved organizations, which must be identified in communications.

Question 9

Targeted Advertisements

Answer 9

Advertising must not harass or solicit someone who has said she wants to be left alone. Targeted direct mail is OK, but must meet exact guidelines for labeling as “Advertising Material.”

Question 10

Ad Labeling, Identifying, & Record Retention

Answer 10

• Every ad must be labeled as advertising and, if applicable, “a dramatization” or “impersonation.”
• It must identify at least one lawyer responsible for its contents.
• You must keep records of the content and placement of any ad for 2 years.

Question 11

CA advertisement presumption

Answer 11

CA Rule 1-400 lists additional actions that shift the burden to the lawyer to disprove an advertisement violation.

Question 12

Solicitation refers to…

Answer 12

individualized contact with a layperson.

Question 13

Solicitation Rule

Answer 13

Do not seek professional employment for pecuniary gain by an initiating a live or telephone contact with a specific person with whom you have no prior professional, personal or family relationship.

Question 14

Attorney Ann lurks in a chat room designed “to offer emotional support for victims of Hurricane Sandy.” She then introduces herself as a lawyer and offers to answer
legal questions for a fee. Prohibited solicitation?

CA & ABA

Answer 14

ABA

• Yes because solicitation extends to real-time electronic contact

CA

• No because CA reads “live or telephone” narrowly

Question 15

CA Preumption for solicitation at scene of accident or en route to medical facility or potential clients not at state of mind:

Answer 15

CA does presume improper communications made at the scene of an accident or en route to a medical facility, and to potential clients that you should know are not in
the physical or mental state to exercise reasonable judgment.

Question 16

Rule for Agents of a lawyer to solicit

Answer 16

Agents can’t do anything that a lawyer can’t do.

Question 17

The Duty of Candor to the Court & Fairness to your Adversary Basics:

Answer 17

• You cannot engage in conduct involving dishonesty, fraud or misrepresentation.
• Even within our adversarial system these duties can trump conflicting duties of confidentiality and loyalty to your client.

Question 18

Duties Under the Duty of Candor to the Court and Fairness to Your Adversary:

Answer 18

1. Duty to present facts and evidence truthfully.
2. Duty to produce evidence.
3. Duty to state the law truthfully
4. Duty to Uphold the Law

Question 19

Duty to present facts and evidence truthfully

Answer 19

You must not make a false statement of material fact or offer evidence you know is false to a tribunal, or fail to correct a false statement of material fact or law that you previously presented.

Question 20

Rules for Duty to present facts and evidence truthfully.

Answer 20

1. You must not knowingly facilitate client perjury.
2. You must not counsel or assist a witness to testify falsely or to become “unavailable.” Unless local law prohibits it, you may pay basic expenses of a witness
   and reasonable fees for expert witnesses, as long as payment is not contingent on the content of the testimony.
3. If you do not know, but only reasonably believe, that testimony is false, these rules are permissive

Question 21

When can you be liable for client perjury?

Answer 21

You must not knowingly facilitate client perjury.

Question 22

Your duty if a client intends to perjure herself. Civil v Criminal

Answer 22

• In a civil case, you must refuse to call a witness, including your client, if you know he intends to perjure himself.
• However, criminal defendants have a 5th Amendment right to testify on their own behalf and a 6th Amendment right to the effective assistance of counsel.
  
  • You also have an ethical duty to protect client confidences

Question 23

How do you balance these rights and duties between the court and your client whose going to perjure?
Bombing Defendant Ted tells you that he intends to testify falsely that he has never owned a typewriter to type manifestos against technology. What should you do?

Answer 23

Take Reasonable Measures

1. Counsel Ted to testify truthfully or not take the stand, then if that fails,
2. You may try to withdraw from the case, then if that fails,
3. ABA: tell the judge. The right to counsel and the
   duty of confidentiality do not shield perjury.
   
   • Ca says allow the defendant to testify in narrative fashion, but do not further the deception. (E.g., don’t facilitate with questions, argue points later to the jury).

Question 24

What if, only after the proceeding ends, Ted tells you that he lied?

Answer 24

Take reasonable remedial measures, e.g., counsel him to recant, but your duties end with the proceedings (after the time for appeal has run.)

Question 25

The morning that Ted’s brother is to testify, you discover that he plans to lie and claim that Ted was with him across the country that day. If he refuses your advice to testify truthfully, what do you do?

Answer 25

Refuse to put him on the stand

Question 26

Basic Idea of Duty to Produce Evidence

Answer 26

• You must not suppress any evidence that you or your client has a legal obligation to reveal or produce, regardless of your duty of loyalty.
• You must not obstruct access to or tamper with fruits or instrumentalities of a crime.

Question 27

Erik brings you a shotgun saying he killed his father with it. He is charged with murder, and you are subpoenaed for the production of physical evidence received from
your client.

1. Must you turn over the gun?
2. May you disclose what Erik told you about the gun?

Answer 27

1. Yes - it is not insulated by confidentiality or privilege
2. No, you may not disclose what Erik told you avout the gun

Draw a line between physical evidence and confidential
information!

Question 28

What if Erik told you he threw the emptied gun into the bushes behind his house? Your investigator finds it but leaves it untouched. May you be compelled to tell the
authorities about it?

Answer 28

No - you can look, but don’t touch

Question 29

If your investigator retrieves the gun and examines it, may she then be compelled to:

1. produce it for the authorities?
2. Tell where she found it?

Why?

Answer 29

1. Yes, she may be compelled to produce it to authorities
2. Yes she may be compelled to tell where she found it

Because an attorney or her agent may be compelled to testify as to the original location or
condition of evidence that she moved or altered.

Question 30

May you reveal the source of the information about the gun’s location?

Answer 30

No

Question 31

Can you retain evidence to conduct tests for your client?

Answer 31

You may retain evidence for a reasonable time to prepare your client’s case, e.g., to conduct tests so long as they will not alter the evidence.

Question 32

What’s an “ex parte” proceedings and how does it affect your duty to produce evidence?

Answer 32

• Ex parte proceedings are communications with the judge without your adversary present.
• Your ethical duties of candor to the court and fairness to your (absent) adversary require you to volunteer relevant information, trumping the normal presumption that you not reveal facts harmful to your client.

Question 33

Prosecutor’s duty to produce evidence:

Answer 33

• Prosecutors have a special duty to timely disclose evidence favorable to the defense
• This ethical duty exceeds the Constitutional Brady obligation, requiring disclosure regardless of admissibility or impact on outcome.

Question 34

Proescutor’s Duty as Compared to a Lawyers?

Answer 34

Prosecutors have higher ethical obligations than other lawyers. The basic duty of prosecutors is to seek justice, not just to win cases. They must have probable cause

Question 35

Duty to state the law truthfully.

Answer 35

Knowingly making a false statement of law or presenting frivolous claims or defenses to the court is subject to discipline. Be candid about the law and cite to adverse authority if controlling and on point.

Question 36

Duty to uphold the law: Rules for assisting client in a crime:

Answer 36

• If continued representation would require you to commit or assist in committing a crime, you must withdraw!
• If your client persists in criminal acts, but you are not assisting, you may withdraw.

Question 37

Duty to uphold the law: Preventing your client from committing a crime. ABA & CA caveats

Answer 37

If your client is going to commit an act reasonably likely to result in reasonably certain death or substantial bodily harm, your disclosure of confidences is permitted.

• In CA, follow the III.B.3.a. safeguards before disclosure.

If your client’s crime or fraud would only cause substantial financial loss, and if your services were employed in it, the ABA permits disclosure

• CA forbids any disclosure for these crimes, although federal securities laws preempt this in part.