DUTIES TO COURTS Flashcards
CANDOR TO THE TRIBUNAL:
APPLICABLE LAW
ABA:
A lawyer must not knowingly make a false statement of law to the court, or fail to correct a previous false statement.
Additionally, a lawyer must not knowingly fail to disclose to the court legal authority in the controlling jurisdiction that is directly adverse to the client’s position and that has not been disclosed by opposing counsel.
CA:
The California rule is the same, but also specifically prohibits “knowingly misquoting” to a tribunal the language of a book, statute, decision, or other authority.
CANDOR TO THE TRIBUNAL:
FACTS OF CASE
BOTH:
A lawyer must not knowingly make a false statement of fact to the court, or fail to correct a previously made false statement of material fact.
As a general rule, a lawyer is under no obligation to volunteer a fact that is harmful to their client’s case. However, in an ex parte proceeding, the lawyer must inform the tribunal of all material facts known to the lawyer that will help the tribunal make an informed decision.
CANDOR TO THE TRIBUNAL:
FALSE EVIDENCE
ABA:
A lawyer MUST refuse to offer evidence that the lawyer knows is false (but see below for false testimony by a criminal defendant client).
A lawyer may refuse to offer evidence that they reasonably believe is false, except for a criminal defendant’s testimony on their own behalf.
If a lawyer has offered a piece of evidence and later discovers that it is false, they must take reasonable remedial measures:
(1) urge the client to cooperate in withdrawing or correcting it;
(2) if unsuccessful, seek to withdraw if necessary, and/or take other measures to strike the evidence;
(3) if all else fails, disclose the situation to the judge, even if that means disclosing information that would be protected by the duty of confidentiality.
CA:
The California rule provides that reasonable remedial measures must not involve revealing information that is protected under the duty of confidentiality.
Put another way, the ABA rule provides that the duty of candor to the tribunal supersedes the duty of confidentiality, and the California rule takes the opposite view
CANDOR TO THE TRIBUNAL:
FALSE TESTIMONY BY CRIMINAL DEFENDANT CLIENT
ABA:
If the client is a criminal defendant and the lawyer knows that the client intends to testify falsely (or has already done so), the lawyer must take the “remedial measures” above:
try to persuade the client not to testify falsely or recant the false testimony;
consider withdrawal; and
if all else fails, reveal the situation to the judge.
CA:
The California rule takes a different approach for false testimony by a criminal defendant client. The lawyer may offer the defendant’s testimony in a narrative form if the lawyer (1) has made reasonable efforts to dissuade the client from testifying falsely and (2) has unsuccessfully sought permission to withdraw.
CANDOR TO THE TRIBUNAL:
DURATION OF OBLIGATION
BOTH:
The duty to correct false statements and rectify false evidence continues until the end of the proceedings: when a final judgment has been affirmed on appeal or the time for appeal has expired.
Note, however, that prosecutors have additional duties that extend beyond the end of the proceeding.
FRIVOLOUS CLAIMS AND DEFENSES
BOTH:
A lawyer who is serving as an advocate in a legal proceeding must not take a position that is either factually or legally frivolous (no good-faith argument).
Despite this general rule, the lawyer for the defendant in a criminal case (or in any proceeding that could result in incarceration or confinement) may conduct the defense so that the prosecutor must prove every necessary element of the case.
EXPEDITING LITIGATION
ABA:
A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client.
CA:
The California rule does not require a lawyer to “expedite” litigation, but instead prohibits a lawyer from using means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.
IMPROPER INFLUENCE OF TRIBUNAL
ABA:
A lawyer must not seek to influence a judge, court official, juror, or prospective juror by improper means.
CA:
The California rule more specifically prohibits a lawyer from directly or indirectly giving or lending anything of value to a judge, official, or employee of a tribunal except as permitted by statute, an applicable code of judicial conduct, or standards governing employees of the tribunal. This rule does not prohibit a lawyer from contributing to a judge’s campaign fund.
EX PARTE CONTACT WITH JUDGES AND COURT OFFICIALS
During a pending proceeding, a lawyer must not have an ex parte communication with a judge or court official except when authorized by law or court order.
EX PARTE CONTACT WITH JURORS AND PROSPECTIVE JURORS DURING PROCEEDING
ABA:
A lawyer must not have any ex parte communication with a prospective juror or juror except when authorized by law or court order.
CA:
The California rule more specifically provides that:
* During jury selection and trial, a lawyer connected with a case must not communicate directly or indirectly with a prospective juror or juror about any subject; and
* During trial, a lawyer not connected with a case must not communicate directly or indirectly with a known juror about the case.
POST-DISCHARGE CONTACT WITH JURORS AND PROSPECTIVE JURORS
BOTH:
A lawyer may generally interview discharged jurors or prospective jurors, unless:
(1) the communication is prohibited by law;
(2) the juror has made known a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress, or harassment.
ADDITIONAL CALIFORNIA RULES FOR CONTACT WITH JURORS AND PROSPECTIVE JURORS
The California Rules also include the following provisions:
* A lawyer is prohibited from conducting an investigation of prospective jurors and jurors in a manner likely to influence the state of mind of the person in connection with present or future jury service.
* All restrictions on contact with and investigations of prospective jurors and jurors also apply to the family members of such persons.
* A lawyer must promptly reveal to the court improper conduct by or toward jurors, prospective jurors, or their family members.
There is no ABA counterpart to these rules.
TRIAL COUNSEL AS WITNESS
ABA:
As a general rule, a lawyer must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. However, this dual role is permitted in any of the following situations:
(1) The trial lawyer’s testimony will relate solely to an uncontested issue.
(2) The trial lawyer’s testimony will relate solely to the nature and value of legal services they have rendered in the case.
(3) Withdrawal would cause substantial hardship to the client. Note, however, that the lawyer may generally proceed as trial counsel if other lawyers at their firm are likely to be witnesses (unless precluded from doing so by the conflict of interest rules).
CA:
The California rule does not include the “substantial hardship” ground in (3). Instead, it provides that the lawyer may act as an advocate in the matter if the client provides informed written consent (under the ABA rule, consent will not solve the problem).
“CHICANERY” AT TRIAL
ABA:
During a trial, a lawyer must not:
(1) assert personal knowledge of facts;
(2) refer to inadmissible material; or
(3) state a personal opinion about the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused.
CA:
The California rule does not include the prohibition on referencing inadmissible material at trial.
Additionally, the California rule prohibits personal opinions only when they concern the guilt or innocence of an accused.
DISRUPTIVE CONDUCT (ABA ONLY)
The ABA Rules prohibit a lawyer from engaging in conduct intended to disrupt a court proceeding or deposition. California does not have a counterpart rule.
