Duties to Courts Flashcards
R3.5 impartiality towards tribunal (4 points)
o a lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
• R7.6 also bars lawyers from accepting an appointment (such as a position as special master) from a judge if the lawyer makes/solicits political contributions for the purpose of obtaining that appointment
• lawyers may contribute to judicial election campaigns even if they may appear before the judges to whom they give money – however, it must be a reasonable amount (see also the Code of Judicial Conduct)
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
• (1) the communication is prohibited by law or court order;
• (2) the juror has made known to the lawyer a desire not to communicate; OR
• (3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal
• this applies to any proceeding of a tribunal (including depos)
3.3 duty of candor towards tribunal
o (a) a lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false
• if a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal
• a lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false
o **key distinction: in a criminal matter, the lawyer must not present false testimony if the lawyer knows it is false, but (in contrast to a lawyer’s option in civil cases) must allow the testimony if he does not know but only reasonably believes it to be false
• if a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered
o if the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence
o if only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false
o (b) a lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal
**refers to “a person” so need not be your client!
**duty can be triggered even if the person just intends to commit crime/fraud
o (c) the duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by R1.6
the conclusion of the proceeding is a reasonably definite point for the termination of the obligation
a proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed
o (d) in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse
the rule is different here because ex parte proceedings are one sided, so it’s important to get all material facts in order for the court to make an informed decision
rule ag offering false evidence
• **the prohibition against offering false evidence only applies if the lawyer knows that the evidence is false – a lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact
o a lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances (see R1.0(f)) – thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood
o unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify
3.6 rule and main exception (7 parts) on trial publicity
o (a) rule: a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that:
the lawyer knows or reasonably should know will be disseminated by means of public communication, and
will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter
o (b) exception: notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
• “public record” is super broad
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
• (i) the identity, residence, occupation and family status of the accused;
• (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
• (iii) the fact, time and place of arrest; and
• (iv) the identity of investigating and arresting officers or agencies and the length of the investigation
**this is not an exclusive list
gentile exception to publicity and imputation rule
o (c) Gentile exception: notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client
a statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity
o (d) imputation: no lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a)
rule and imputation for lawyer as witness
o (a) a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
• typically relates to disputes over legal fees
(3) disqualification of the lawyer would work substantial hardship on the client
• for “substantial hardship” think extenuating circumstances like a time crunch
o (b) no imputation rule: a lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9
3.9 rule for advocates in nonadjudicative proceedings
o rule: a lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5 (i.e. candor towards tribunal and fairness to opposing party)
o this Rule only applies when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer’s client is presenting evidence or argument
o it does not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege or the client’s compliance with generally applicable reporting requirements, such as the filing of income-tax returns
o nor does it apply to the representation of a client in connection with an investigation or examination of the client’s affairs conducted by government investigators or examiners
(representation in such matters is governed by Rules 4.1 through 4.4)
