Duties to Courts/Opposing Counsel

Question 1

Duty of Candor

Answer 1

Lawyer is required to present law, facts and evidence to the tribunal in truthful manner.

Question 2

Stating the Law and Facts

Answer 2

Lawyer must not knowingly make false statement of fact, including correcting previous false statements, disclose facts in ex parte proceeding and must disclose harmful legal authority.

Question 3

False Evidence in General

Answer 3

Lawyer must refuse to offer evidence they know is false.
- If lawyer doesn’t know but reaosnably believes it is false, rule becomes permissive.
- If lawyer has offered evidence and later discovers it is false, they must take remedial measures:
1. urge client to cooperate in withdrawal/correction
2. if unsuccessful, seek to withdraw or other measures to strike evidence
3. if all else fails, disclose situation to judge even if it breaches duty of confidentiality
CA: remedial measures must not involve breaching duty of confidentiality

Question 4

False Evidence - Perjury by Criminal Defendant

Answer 4

Criminal D has a 5A right to testify and 6A right to effective assistance of counsel. If lawyer only reasonably believes D’s testimony is false, they have to let D testify.
But if lawyer knows testimony is false, lawyer must take remedial measures:
1. try to persuade client not tot testify/recant
2. consider withdrawal, and
3. if all else fails, reveal situation to judge
CA: lawyer may offer D’s testifmony if narrative form (for step 3)

Question 5

Frivolous Claims and Defenses

Answer 5

Lawyer must not take position unless there is basis in law and fact for doing so (can make GF argument).
CA: also prohibits lawyer from acting without probable cause and for purpose of harassing

Question 6

Preserving Impartiality/Decorum

Answer 6

Lawyer must not seek to influence judge, court official, juror or prospective juror by improper means.
CA: specifically prohibits giving anything of value

Lawyer must not communicate with juror except when authorized. After discharge of jury, lawyer may generally interview unless:
1. prohibited by law
2. juror has made known desire not to communicate or
3. communication involves misrepresentation, coercion, harassment.

Question 7

Trial Counsel as Witness

Answer 7

Generally, lawyer must not act as advocate in trial in which lawyer is likely necessary witness. However, it is permitted if:
- testimony related to unconstested issue
- testimony relate solely to nature and value of legal services they have rendered or
- withdrawal would cause substantial hardship to client

Question 8

Opponent’s Access to Evidence

Answer 8

Lawyer must not falsify evidence/assist in perjury. Lawyer must not unlawfully obstruct access to evidence or destroy/conceal anything having evidentiary value.
CA: specifically prohibits
1. supressing evidence that lawyer has legal obligation to produce
2. advising a person to hide or flee for purpose of making them unavailable as witness.

Question 9

Advising Person Not to Give Information

Answer 9

Lawyer may advise person from givign info to opponent only if:
1. person is client, or client’s relative/agent, and
2. lawyer reasonably beleives person’s interests will not be harmed

CA: does not have this rule

Question 10

Paying Witnesses

Answer 10

Lawyer must not offer inducement to witness that is prohibited by law, and it is generally improper to pay witness for testimony unless:
1. reasonable travel and incidental expenses
2. compensation for loss of time
3. reasonable fees to expert witnesses

Such payments must not be contingent on content of testimony or outcome

Question 11

Duties of Prosecutors

Answer 11

Prosecutors must
- refrain from prosecuting without probable cause
- assure accused has been advised of right to counsel and given reasonable opportunity to obtain counsel
-not seek to obtain from unrepresented accused a waiver of important pretrial rights
- make timely disclosure to defense of exculpatory evidence

Question 12

Trial Publicity

Answer 12

Lawyer must not make extrajudicial statement lawyer reasonably should know:
1. will be publicly disseminated and
2. will have substantial likelihood of materially prejudicing the case

Lawyer is permitted to publicly reply to protect client from prejudicial effect if not initiated by lawyer

Question 13

Truthfulness in Statements to Others

Answer 13

1. No false statements of material facts to third persons (puffery allowed)
2. must disclose material facts to third person to avoid assisting client in crime/fraud (unless duty of confidentiality forbids - but lawyer might need to withdraw if assisting in crime/fraud)

Question 14

Communicating with Represented Person

Answer 14

Lawyer must not communicate about subject of representation with person they know is represented unless:
1. counsel grants permission or
2. lawyer is otherwise authorized by law

CA: does not prohibit communication with public official

Rule also applies to represented ogranizations

Question 15

Communication with Unrepresented Person

Answer 15

Lawyer may communicate directly about matter, however, communcations have restrictions:
1. lawyer must not imply they are disinterested
2. lawyer must correct any misunderstandings
3. if person’s interests conflict with clients, lawyer must not give any legal advice

Question 16

Advertising

Answer 16

Lawyer advertising is protected by 1A. However, lawyer must not make false or misleading statements.

Question 17

Solicitation

Answer 17

A solicitation is a targeted communication initiated by the lawyer that is directed to specific person who needs legal services.
- Live person to person contact is generally prohibited (including Skype) where person is subject to direct personal encounter without time for reflection.
Exceptions:
- another lawyer
- close relationship
- person who routinely uses for business purposes the type of legal services offered by lawyer (CA does not have this)