Duties to Others

Question 1

Meritorious Claims and Contentions (MR & CRPC)

Answer 1

A lawyer is prohibited from:

bringing an action, conducting a defense, asserting a position, or taking an appeal without probable cause and for the purpose of harassing a person; or

presenting a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.

Question 2

Meritorious Claims and Contentions (MR & CRPC)
Re: Representation Hack if crim justice client tells you he is guilty

Answer 2

When client tells crim d lawyer that he is guilty, there is no violation of this rule if Crim Defense lawyer directs client to plead not guilty, as a way to make the prosecutor establish every element of the crime.

Question 3

Lawyer as a witness (MR + CRPC)

Answer 3

Generally, lawyer can’t act as an advocate in a trial in which the lawyer is likely to be a witness. But eceptions to this include:

the lawyer’s testimony relates to an uncontested issue or matter;

the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or

Question 4

Lawyer as a witness (CRPC ONLY)
Re: Exceptions to General Rule

Answer 4

the lawyer has obtained informed written consent from the client.

Question 5

Lawyer as a witness (MR ONLY)
Re: Exceptions to General Rule

Answer 5

disqualification of the lawyer would cause substantial hardship on the client.

Question 6

Special Responsibilities for Prosecutors (MR + CRPC)
Re: List not exhaustive

Answer 6

when knowing new, credible, material evidence creating a reasonable likelihood that a convicted defendant did not commit the crime:

• promptly disclose the evidence to the court or other authority;
• if the conviction occurred in the prosecutor’s jurisdiction, promptly disclose the evidence to the convicted defendant; and
• undertake further investigation to determine whether the defendant was convicted of a crime he did not commit.

when knowing clear and convincing evidence establishing that a defendant convicted in the prosecutor’s jurisdiction did not commit the crime, seek to remedy the conviction.

Question 7

Special Responsibilities for Prosecutors (MR + CRPC)
Re: Scope of Responsibilities

Answer 7

Special duties apply when we are dealing with a prosecution’s jurisdiction. Prosecution does not bear responsibilities outside his jurisdiction.

Question 8

Impartiality & Decorum
Re: Ex parte communication with jury

Answer 8

Ex parte communication with jurors is prohibited.

A lawyer may not communicate with anyone the lawyer knows to be a member of the venire from which the jury will be selected.

Question 9

Impartiality & Decorum
Re: During trial

Answer 9

Ex Parte communication is prohibited when:

connected with the case may not communicate with a juror; and

not connected with the case may not communicate with anyone he knows is a juror in the case.

These two rules are subtly different: first rule presupposes that you know who the jurors are in your case. (So if you’re communicating with someone, you know they are a juror).

This second case here is re: a lawyer not connected with the case

Question 10

Impartiality & Decorum
Re: After Discharge of Jury

Answer 10

After discharge of the jury, a lawyer may not ask questions or make comments to a juror that are intended to harass or embarrass the juror or influence the juror’s actions in future jury service.

Question 12

Duty to Expedite Litigation (CRPC + CBPC)

Answer 12

A lawyer must not prolong the proceeding or cause needless expense.

The willful delay of a client’s suit for the lawyer’s own gain is a crime in California. Violation of this law amounts to an act of moral turpitude justifying discipline.

Question 13

Duty to Expedite Litigation (MR)

Answer 13

A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client.

Question 14

Fairness to Opposing Party & Counsel (CRPC)
Re: Concealing & destroying evidence

Answer 14

It is a misdemeanor to willfully conceal or destroy evidence.

Question 15

Fairness to Opposing Party & Counsel (CBPC)
Re: CALI ONLY

Answer 15

A lawyer shall not:

 unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value (or counsel another person to do so);

 suppress any evidence that the lawyer or client has a legal obligation to produce;

 falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

 directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case;

 advise or cause a person to secrete himself or to leave the jurisdiction, for the purpose of making that person unavailable as a witness;

 knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; or

 in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the guilt or innocence of an accused.

Question 16

Fairness to Opposing Party & Counsel (MR)

Answer 16

A lawyer shall not:
 unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value (or counsel another person to do so);

 falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

 knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

 in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

 in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

 request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

• the person is a relative or an employee or other agent of a client; and
• the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

Question 17

Fraud or Perjury (MR + CRPC)
Re: False Statements to Tribunal

Answer 17

 A lawyer cannot:

• knowingly 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 by the lawyer;
• 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 knowingly misquote the law; or
• offer evidence that the lawyer knows to be false.

Question 18

Fraud or Perjury (CRPC)
Re: CALI ONLY

Answer 18

If the lawyer, the client, or a witness called by the lawyer has offered material evidence, and the lawyer comes to know of its falsity, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal, unless the disclosure would violate the duty of confidentiality.

If the lawyer knows that a person intends to engage in criminal or fraudulent conduct related to the proceeding, the lawyer must take reasonable remedial measures to the extent permitted by the duty of confidentiality.

Question 19

Fraud or Perjury (CRPC)
Re: CALI ONLY - Remedial Steps

Answer 19

Step 1: If client has already given testimony, try and talk them into recanting their testimony. OR If Client has not yet given false testimony, try to talk them out of giving that false testimony.

Step 2: Attempt to withdraw if that will solve the problem. (Withdrawal = with courts permission)

Step 3: As last resort tell the judge. Controversial bc in conflict with client confidentiality

Question 20

Fraud or Perjury
Re: MR vs. CRPC

Answer 20

NOTE: Model Rule 3.3(b) places the duty of candor to the tribunal above the duty of confidentiality to the client, requiring a lawyer to take remedial measures, including disclosure to a tribunal, when he knows that a person is engaging, intends to engage, or has engaged in criminal or fraudulent conduct related to the proceedings. In contrast, California requires the lawyer to balance the duty to the court with the duty of confidentiality to the client [CRPC Rule 3.3(b)].

Question 21

Maintaining the Integrity of the Legal Profession
Re: Reporting Professional Misconduct

Answer 21

Gotta snitch under MR but not Cali rules

Question 22

Maintaining the Integrity of the Legal Profession (CRPC)
Re: Reporting Professional Misconduct & Telling on Yourself

Answer 22

A lawyer must report himself to the California State Bar, in writing, within 30 days of the time the lawyer has knowledge of any of the following:

 the filing of three or more lawsuits in a 12-month period against the lawyer for malpractice or other wrongful conduct committed in a professional capacity;

 the entry of judgment against the lawyer in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity;

 the imposition of judicial sanctions against the lawyer, except for sanctions for failure to make discovery or monetary sanctions of less than $1,000;

 the bringing of an indictment or information charging a felony against the lawyer;

 the conviction of the lawyer, including any verdict of guilty, or plea of guilty or no contest, of a felony, or a misdemeanor committed in the course of the practice of law, or in a manner in which a client of the lawyer was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of a lawyer, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type;

 the imposition of discipline against the lawyer by a professional or occupational disciplinary agency or
licensing board, whether in California or elsewhere; and

 reversal of judgment in a proceeding based in whole or in part upon:
* misconduct;
* grossly incompetent representation; or
* willful misrepresentation by a lawyer.

Question 23

Unauthorized Practice of Law
Re: Under what conditions can atty work with a disbarred etc atty?

Answer 23

A lawyer’s partnership with a non-lawyer is prohibited if any of the activities of the partnership constitute the practice of law. BUT:

A lawyer may employ a disbarred, suspended, resigned, or involuntarily inactive lawyer to do research, drafting, or clerical activities, but must serve the State Bar with a written notice of the employment.