DUTIES TO OPPONENTS WHEN ACTING AS ADVOCATE Flashcards
OPPONENT’S ACCESS TO EVIDENCE
A lawyer must not falsify evidence or assist in perjury.
A lawyer also must not unlawfully obstruct a party’s access to evidence.
CA:
The California Rules also specifically prohibit:
* Advising a person to secrete themselves or to flee the jurisdiction for the purpose of making the person unavailable as a witness.
* Suppressing evidence that the lawyer or the lawyer’s client has a legal duty to produce.
ADVISING PERSON NOT TO GIVE INFORMATION
(ABA ONLY)
A lawyer may advise a person to refrain from voluntarily giving information to an opponent or other party, but only if the following conditions are met:
(1) the person is a client, or the client’s relative, employee, or agent; and
(2) the lawyer reasonably believes that the person’s interests will not be harmed by not volunteering the information.
California does not have a counterpart rule.
PAYING WITNESSES
BOTH:
A lawyer must not offer an inducement to a witness that is prohibited by law.
Generally it is improper to pay witnesses for their testimony.
However, except when prohibited by local law, the following payments to witnesses are proper:
* Reasonable travel and incidental expenses.
* Compensation for loss of time in attending and testifying.
* Reasonable fees to expert witnesses.
A payment to a witness must never be contingent on the content of the testimony or the outcome of the case.
ABUSING DISCOVERY PROCEDURES
(ABA ONLY)
A lawyer must not make a frivolous discovery request, or fail to make reasonable efforts to comply with a legally proper discovery request made by the adversary.
CA:
California does not have a counterpart rule. In fact, the comments to the California Rules note that a violation of a discovery rule or statute does not necessarily constitute an ethical violation.
VIOLATING COURT RULE OR ORDER
A lawyer must not violate a court rule or order (however, a lawyer may openly refuse to obey for the purpose of making a good faith challenge to its validity).
USING THREATS TO GAIN ADVANTAGE IN CIVIL CASE
While representing a client in a civil dispute, a lawyer must not threaten to present criminal, administrative, or disciplinary charges for the purpose of gaining an advantage for the client.
Note that if the lawyer believes in good faith that the adversary is engaging in illegal or unethical conduct, this rule does not prohibit a lawyer from stating that they will present charges if the conduct continues. Nor does the rule prohibit actual reporting of the violation.
SPECIAL DUTIES OF PROSECUTORS: IN OWN CASE
BOTH:
A prosecutor in a criminal case must:
* Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.
* Make reasonable efforts to assure that the accused has been advised of the right to counsel and has been given reasonable opportunity to obtain counsel.
* Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.
* Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense (unless the prosecutor is relieved of this responsibility by a protective order of the tribunal).
* Exercise reasonable care to prevent investigators or other persons assisting the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making.
ABA Only: Not subpoena a lawyer to present evidence about a client unless the prosecutor reasonably believes:
(1) the information is not privileged,
(2) the evidence is essential, and (3) there is no feasible alternative.
SPECIAL DUTIES OF PROSECUTORS: IN ANY CASE
New, Credible, and Material Evidence—Must Disclose:
When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense, the prosecutor must promptly disclose the evidence to an appropriate court or authority.
If the conviction took place in the prosecutor’s own jurisdiction, the prosecutor must also promptly disclose the evidence to the defendant and make reasonable efforts to cause an investigation.
Clear and Convicting Evidence in Own Jurisdiction—Must Remedy: When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that they did not commit, the prosecutor must seek to remedy the conviction.
TRIAL PUBLICITY
A lawyer who is connected with a case (or any associated lawyer in their firm or agency) must not make any extrajudicial statement that the lawyer reasonably should know:
(1) will be publicly disseminated and
(2) will have a substantial likelihood of materially prejudicing the case.
However, certain dry facts about the case are permitted.
Additionally, a lawyer does have a right of reply.
The lawyer may make a public 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.
