Duties to Courts Flashcards
Lawyer’s duty of candor to the tribunal
A lawyer is required to present the law, facts, and evidence to the tribunal in a truthful manner.
Must a lawyer correct a false statement?
If a lawyer previously made a false statement of material fact or law, the lawyer must correct their statement.
Must a lawyer disclose facts that are harmful to their client’s case?
Generally no, unless the proceeding is an ex parte proceeding (i.e., other side is not present). In ex parte proceedings, the lawyer must inform the tribunal of all material facts known to the lawyer that will help the tribunal make an informed decision.
Must a lawyer disclose harmful legal authority?
California exception applies
A lawyer must NOT knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction that is directly adverse to their client’s position AND has not been disclosed by opposing counsel.
In CA: specific prohibition which states that a lawyer may not knowingly misquote to a tribunal the language of a book, statute, decision, or other authority.
Can a lawyer offer knowingly false evidence to the tribunal?
In a matter pending before a tribunal, the lawyer must refuse to offer evidence that they know is false.
Can the lawyer offer into evidence testimony that she does not know, but reasonably believes, is false?
A lawyer may refuse to offer evidence that they reasonably believe is false, except for a criminal defendant’s testimony on their own behalf.
What must a lawyer do if they offer evidence before the tribunal and later discover the evidence to be false?
California exception applies
The lawyer must take the following remedial measures:
1. urge the client to cooperate in withdrawing or correcting the evidence
2. if step 1 is unseccessful, the lawyer must seek to withdraw if necessary, and/or take other measures to strike the evidencec (withdrawal will often not work)
3. if all else fails, disclose the situation to the judge
In CA: you CANNOT reveal information that is protected under the duty of confidentialiity
Perjury by criminal defendant
California exception applies
Under the ABA approach, if the client is a criminal defendant and the lawyer knows that the client intends to testify falsely, the lawyer must take measures similar to other reasonable remedial measures like: (i) try to persuade the client not to testify falsely; (ii) consider withdrawal; and (iii) if all else fails, reveal the situation to the judge.
In CA: the lawyer may permit the criminal defendant to testify in a narrative form so long as the lawyer has: (i) made reasonable efforts to dissuade the client from testifying falsely; and (ii) has unsuccessfully sought permission to withdraw.
Duration of candor obligations
The duties of candor continue until the end of the proceedings: i.e., when a final judgment has been **affirmed on appeal **or the time for appeal has expired.
Can a lawyer argue a frivilous position?
California exception applies
A lawyer must not take a position unless there is a basis in law or fact for doing so that is not frivolous. A position is not frivolous if the lawyer can make a good-faith argument for an extension, midification, or reversal of existing law.
In CA: the rules prohibit a lawyer from bringing or continuing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person.
Expediting litigation
California exception applies
A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client
In CA: the rule doesn’t require a lawyer to “expedite” litigation, but instead prohibits a lawyer from using means that have no substantial purpuse other than to delay or prolong the proceeding or to cause needless expense.
Exerting improper influence over a tribunal
California exception applies
A lawyer must not seek to influence a judge, court official, juror, or prospective juror by improper means
In CA: the rule more specifically prohibits a lawyer from **directly or indirectly giving or lending anything of value **to a judge or official, or employee of a tribunal except as permitted by statute. This rule does not prohibit a lawyer from contributing to a judge’s campaign fund.
Can a lawyer have contact with jurors during a proceeding
California exception applies
A lawyer must not have any ex parte communication with a prospective juror or juror except when authorized by law or court order.
Can a lawyer have contact with jurors after discharge of jury?
California exception applies
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.
In CA:
1. 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.
2. all restrictions on contact with and investigations of prospective jurors and jurors also appy to the family members of such persons.
3. a lawyer must promptly reveal to the court improper conduct by or toward jurors, prospective jurors, or their family members.
Can trial counsel serve as a witness?
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, the dual role is permitted if:
1. the trial lawyer’s testimony will relate solely to uncontested issues;
2. the trial lawyer’s testimony will relate solely to the nature and value of legal services
3. withdrawal from the case would cause substantial hardship
In CA: there is no “substantial hardship ground.” The lawyer may act in a dual capacity so long as the client provides informed written consent.
