Duties to Courts Flashcards
Truth-Telling Inside the Court Context
A lawyer is prohibited from
nowingly making false statements of material fact to the court
Truth-Telling Inside the Court Context
But no general obligation to reveal
unfavorable facts to the court
Truth-Telling Inside the Court Context
When must a lawyer disclose material facts?
“when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.”
The Perjury Problem
The lawyer’s duty depends on? the duties?
who is committing the perjury and when the lawyer learns of the perjury
A lawyer is prohibited from offering any evidence the lawyer knows to be false
A lawyer MAY refuse to offer evidence that the lawyer reasonably believes is false
Truth-Telling Inside the Court Context
What is the Ex parte exception?
When permitted by law to communicate with the court ex parte, the lawyer must disclose both favorable and unfavorable material facts
The Perjury Problem
When the lawyer knows of the client’s intention to commit perjury, the lawyer must:
- attempt to convince them otherwise; then
- attempt to withdraw from representation; and then
- If the perjury occurs, take reasonable remedial measures, including disclosure to the court if necessary.
The Perjury Problem
When the lawyer learns of the perjury after it happens, but before the proceedings end, the lawyer must:
- Attempt to convince the client to rectify the matter; and then
- If that fails, the lawyer must take reasonable remedial measure, including revealing the perjury (mandatory)
The Perjury Problem
When the lawyer does not learn of the perjury until the proceedings have ended,…
lawyer has no obligation to reveal it
Criminal Defense Issues
Does VA distinguish criminal defendant’s perjury?
In Virginia, a lawyer is still required to reveal a criminal defendant’s perjury
Model Rules suggest allowing the defendant to testify in a narrative form (rather than assisting in the perjury by asking questions)
Statements of Law
Prohibited from? Required to?
- A lawyer is prohibited from making false statements of law to the court.
- Lawyers are obligated to disclose to the court controlling adverse authority.
Under the model rules, only directly adverse authority must be disclosed. VA removed the word, “directly.”
Witness Compensation
what should a lay witness be compensated for?
A lay witness should only be compensated for reasonable expenses incurred, lost earnings, and a statutory witness fee
Witness Compensation
What may and may not an expert witness be compensated?
They may be paid a reasonable fee for their services and they may not be paid a contigent fee
Frivolous Claims
Rules prohibit lawyers from?
taking legal or factual positions that are meant to harass or maliciously injure a third party
Other Conduct
Lawyers are prohibited from expressing their personal opinion to jurors about …
the credibility of a witness, the justice of a client’s cause, or guilt or innocence of a party
Other Conduct
Lawyers are prohibited from alluding to evidence the court has ruled…
inadmissible
