Duties to Courts

Question 1

Candor to the Tribunal - Stating Law and Facts

Answer 1

• No false statements of fact or law
• Correct prior false statements
• In ex parte proceeding, disclose all material facts
• Disclose controlling legal authority if directly adverse and opponent hasn’t done it

Question 2

Candor to the Tribunal - False Evidence

Answer 2

Don’t offer false evidence lol

May refuse to offer evidence reasonably believed (but not known) to be false

Question 3

Candor to the Tribunal - Reasonable Remedial Measures

Answer 3

Step 1: Urge client to withdraw or correct their statements

Step 2: If that ^ doesn’t work, try to withdraw from case or strike the evidence

Step 3: If all else fails, tell judge

CA Distinction: Can’t disclose confidential info. The duty of confidentiality to client trumps your duty of candor to the court. So in CA you don’t tell the court.

Question 4

Candor to the Tribunal - Perjury by Criminal Defendant

Answer 4

Perjury by crim defendant does have a funny wrinkle: crim def does have 5A constitutional right to testify and 6A right to effective counsel. This means you should:

1) Take reasonable remedial measures:
–> BUT in CA: instead of telling judge, have client testify in narrative form. When you get to the part where you know Ted is going to lie, you say “Ted, do you have anything else to say?” then you step back and don’t facilitate or use any of the testimony. That way Ted can exercise his constitutional rights but you aren’t using that evidence.

Question 5

Timing for Remedy

Answer 5

Your duty to remedy will end with the time for appeal. Either through the appeal or when that time has run.

Question 6

Frivolous Claims and Defenses

Answer 6

Prohibited, but defense lawyer in criminal case can make prosecutor prove every element.

Question 7

Expediting Litigation

Answer 7

Must make reasonable efforts to expedite litigation (ABA)

CA: prohibits using means with no other purpose than to delay proceedings (phrased in negative)

Question 8

Preserving Impartiality and Decorum of Tribunal

Answer 8

Don’t seek to influence judge/court officials.

CA: don’t give or lend anything of value to a judge… unless it’s their campaign donations LMAO

Question 9

Contact with Jurors During Case

Answer 9

Generally prohibited

Lawyer must not have any ex parte communication with a prospective juror or juror except when authorized by law or court order.

CA Difference: the rule regarding contact with jurors during a matter also has a provision relating to lawyers not connected with the case, providing 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 (same as ABA rule)
- During trial, a lawyer not connected with a case must not communicate directly or indirectly with a known juror about the case

Question 10

Trial Counsel as Witness

Answer 10

Can’t be both an advocate and witness in the same trial. The dual role is permitted only when:
-> Testimony is about uncontested issue
-> Nature and value of legal services in case
-> Withdrawal would cause client substantial hardship
-» CA: no substantial hardship grounds, but conflict waivable with client’s informed written consent

Question 11

“Chicanery” at Trial

Answer 11

“Chicanery” = trickery by lawyers and politicians.

During trial, a lawyer must not:
- Assert personal knowledge of facts
- Refer to inadmissible material
- 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 Difference: Doesn’t include the prohibition on referencing inadmissible material at trial.

The CA rule ONLY prohibits statements of personal opinion concerning the guilt or innocence of the accused