Duties to Opponents Flashcards
Opponent’s access to evidence
California exception applies
A lawyer must not falsify evidence or assist in perjury. A lawyer must also not unlawfully obstruct another party’s access to evidence, or unlawfully alter, destroy, or conceal a document or other item having evidentiary value.
Can temp. retain ev. for ltd examination if ev. not materially altered
In CA: lawyer prohibited from:
1. **supressing evidence **that the lawyer or lawyer’s client has legal obligation to reveal
2. advising a person to hide or flee the jurisdiction for the purpose of making person unavailable.
Can a lawyer advise a person not to give information to the oppnent?
Yes, as long as:
1. the person is a client or the client’s relative, employee, or agent
2. the lawyer reasonably believes that the person’s interests will not be harmed by not volunteering the info.
California does not have an equivalent rule.
When can a lawyer pay a witness?
Generally, paying a witness is not allowed. Exception for:
1. reasonable travel and incidental expenses
2. compensation for loss of time in attending and testifying
3. reasonable fees to expert witnesses*
- such payments must never be contingent on the content of the testimony or outcome of the case
Things lawyer cannot do re: court process
- abuse discovery procedure*
- violate court rule or order
- use threats to gain advantage in a civil case
- CA does not have an equivalent rule. In fact, a violation of a discovery rule or statute does not necessarily constitute an ethical violation
Special duties of prosecutors
A prosecutor in a criminal case must:
1. refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause
2. make reasonable efforts to assure the accused has been advised of the right to counsel and has been given a reasonable opportunity to obtain counsel
3. not seek to obtain from an unrepresented accused a waiver or important pretrial rights
4. make timely disclosure to the defense of all evidence or information that tends to negate guilt or mitigate the offense
5. exercise reasonable care to prevent extrajudicial statements
6. not subpoena a lawyer to present evidence about a crime unless the prosecutor reasonably believes the infromation is not privileged, is essential, and there is no alternative*
- CA does not include this rule
Trial publicity
A lawyer cannot make extrajudicial statements that the lawyer should reasonably know:
1. will be **publicly disseminated **and
2. will have a substantial likelihood od materially prejudicing the case
See “right or reply” card for more info
Right of reply
A lawyer is permitted to make a public statement that a reasonable lawyer would believe is required to protect a client from the siubstantial undue prejudice effect of recent publicity not initiated by the lawyer or the lawyer’s client.
