Duties Owed to the Court Flashcards
Duty of Candor–Lawyer’s Conduct involving dishonesty or fraud
A lawyer CANNOT engage in conduct involving dishonesty or fraud.
A lawyer CANNOT knowingly:
(a) make a false statement of fact or law to a tribunal;
(b) fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(c) fail to disclose to a tribunal controlling legal authority known to be adverse (unless disclosed by opposing counsel); OR
(d) offer or use evidence that the lawyer knows to be false.
Duty of Candor–Lawyer Knows/Learns that He’s offered false evidence
If a lawyer knows/learns he has offered false material evidence (including witness testimony), the lawyer MUST take reasonable remedial measures, including disclosure to the tribunal (if necessary).
In CA, disclosure of confidential information is prohibited (absent consent of the client).
Duty of Candor–Laywer Reasonably Believes information/evidence is false
A lawyer MAY refuse to offer evidence that the lawyer reasonably believes is false EXCEPT FOR the testimony of a criminal defendant.
Witness Purjury–Calling a witness the lawyer KNOWS will commit perjury
A lawyer CANNOT call a witness that he knows will commit perjury (testify falsely). A lawyer’s knowledge that evidence is false may be inferred from the circumstances. If a lawyer later learns that a witness committed perjury, the lawyer must take reasonable remedial measures.
Witness Purjury–Criminal Defendant lawyer knows will commit perjury
However, a defendant in a criminal case has the constitutional right to testify on his own behalf. In this situation, the lawyer should:
o First, try to persuade the client that the evidence should not be offered.
o Second, attempt to withdraw from the case (if the persuasion is ineffective).
o Third, if the attempt to withdraw is unsuccessful then:
—-Under the ABA, the lawyer must tell the court,
including disclosure of confidential
information (if necessary).
—–In CA, the lawyer must allow the defendant to
testify in a narrative fashion. Disclosure of confidential information is prohibited (absent consent of the client).
Witness Perjury–Lawyer reasonably believes (but does not know) testimony is false
If a lawyer reasonably believes (but does not know) that the testimony is false, he MAY permit or refuse to offer the testimony/proof (the lawyer has discretion).
Ex Parte Communications with the Court
- A lawyer CANNOT seek to influence the Court or communicate the merits of a case without ALL parties present (ex parte), UNLESS the attorney is authorized by law to do so.
- During an authorized ex parte proceeding, a lawyer MUST inform the tribunal of all material facts known that will enable the tribunal to make an informed decision (whether or not the facts are adverse)
Filing Frivolous Claims and Contentions/Arguments
• A lawyer has a duty to investigate the claims/defenses filed on behalf of a client, and CANNOT file frivolous claims/defenses with the Court. Specifically, the rule prohibits:
(1) actions that lack probable cause and are intended to harass or maliciously injure; and/or
(2) claims or defenses that are unwarranted under existing law without a good faith argument for a change in the law.
• Whether a lawyer satified his duty to investiage the claims, defenses, and/or legal positions is measured by what a reasonable attorney would do in similar circumstances.
Filing Frivolous Claims and Contentions/Arguments–Making Prosecutor prove every claim against criminal defendant
• A lawyer for a defendant in a criminal proceeding (that could result in jail time) may nevertheless defend by requiring that every element of the case be established.
Obstructing or Altering Discoverable Evidence
A lawyer CANNOT unlawfully:
(a) obstruct another party’s access to evidence; OR
(b) alter, destroy, or conceal a document/material with evidentiary value.
A lawyer also CANNOT counsel or assist another person to do any such act.
Improper Influence–parties in the courtroom
• A lawyer CANNOT seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.
Improper Influence–asking another person to not voluntarily give information
A lawyer CANNOT request a person (other than a client) to refrain from voluntarily giving information to another party UNLESS:
(1) the other party is a relative, employee, or other agent of the client; AND
(2) the lawyer reasonably believes that silence will not adversely affect the person’s interests.
Improper Influence–falsifying evidence
A lawyer CANNOT falsify evidence, counsel or assist a witness to testify falsely, OR offer an unlawful inducement to a witness (i.e. improper payments or causing a person to become “unavailable”).
Proper Discovery Requests & Compliance
- A lawyer MUST make a reasonably diligent effort to comply with legally proper discovery requests by an opposing party.
- A lawyer CANNOT make a frivolous discovery request.
Payments to Witnesses–In General
A lawyer CANNOT offer an unlawful inducement to a witness or make payments to a witness contingent upon the content of the testimony or outcome of the case.
