Duties to Opponents and Other Non-Clients Flashcards
What is the rule on statements of fact?
Lawyer must not knowingly make a false statement of fact to anyone in the course of representing a client
* Puffery is allowe and includes: (1) estimates of price/value and (2) statements of party’s intentions as to settlement
When MUST a lawyer disclose facts?
When necessary to avoid assisting client in crime or fraud (compare with duty of confidentiality–brushes against it)
What is the rule over trial publicity in a criminal case?
In a criminal case that will be tried before a jury, a lawyer who is participating in or associated with investigation, prosecution, or defense must not make any extrajudicial statement that lawyer reasonably should know:
1. Will be publicly disseminated AND
2. Will have substantial likelihood of interfering with fairness of a jury trial
What is the rule on paying witnesses?
Cannot pay to induce a witness where prohibited by law, and improper to pay witness for testimony, but the following are allowed:
1. Reasonable travel and incidental expenses incurred in attending or testifying
2. Reasonable compensation for witness’s lost earnings as result of attending/testifying
3. Reasonable fees to expert witnesses
CAN NEVER BE CONTINGENT ON OUTCOME
What is the rule on threats in a civil matter?
Lawyer cannot present or threaten to present criminal or disciplinary charges for the sole purpose of gaining an advantage for the client
What are the special duties of prosecutors?
- Refrain from prosecuting where known charge not supported by probable cause
- Refrain from knowingly taking advantage of unrepresented D
- Refrain from instructing anyone to withhold information from defense after party has been charged
- Make timely disclosure of all evidence or information known to prosecutor that tends to negate guilt of accused, mitigate degree of offense, or reduce punishment
What is the general rule of communicating with a person who is represented by counsel?
Lawyer must not communicate about the subject of the representation with a person they know to be represented by counsel in the matter (whether or not a party) UNLESS:
1. Person’s counsel has granted permission or
2. Lawyer otherwise authorized by law or court order to make communication
Does NOT prohibit: (1) conversations on unrelated topics; (2) communications between the parties; or (3) communications with prospective client seeking second opinion or replacement counsel
What is the rule against communications with respect to represented organizations?
Must get consent of organization’s counsel if in any of the following categories:
1. Person supervises, directs, or regularly consults with organization’s lawyer concerning the matter
2. Person has authority to obligate the organization with respect to the matter; OR
3. Person’s act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability
NOTE this does not extend to a person who has their own counsel in the matter or former employees
What is the rule on communicating with unreprsented persons?
Lawyer representing client may communicate with such person directly about the matter, subject to following restrictions:
1. Cannot state/imply they are disinterested
2. Must make reasonable efforts to correct misunderstanding if unrepresented person does not understand lawyer’s role
3. Must not give any legal advice if person’s interests conflict with client’s (except to speak to attorney)
What MUST a lawyer do if they obtain a document or ESI relating to representation of lawyer’s client?
If the receiving lawyer knows or reasonably should know it was privileged and sent by mistake, MUST:
1. Immediately stop reviewing or using document or ESI
2. Promptly notify the sender
3. Abide by sender’s instructions to return or destroy document or ESI
