Duties to the Court Flashcards
Duties of Candor, Witness Perjury Frivolous Claims etc
Duty of Candor to the Court
Duty of candor 1/3
A lawyer cannot engage in conduct involving dishonesty or fraud.
A lawyer shall not knowingly
a. 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,
b. Fail to disclose adverse legal authority, or
c. Offer evidence that the lawyer knows to be false (perjury).
d. A lawyer who knows the client intends to engage in fraudulent or criminal activity shall take reasonable
remedial measures, including, if necessary and
permissible, disclosure to the tribunal.
What must a lawyer do if he knows / learns he has offered false material evidence?
The lawyer must take rb remedial measures including disclosure to the tribunal if necessary.
In CA – disclosure of confidential information is prohibited absent CL consent.
Can a lawyer refuse to offer testimony rb believed to false (+ what is the exception to this rule)
A lawyer MAY refuse to offer evidence that the lawyer rb believes is false EXCEPT for the T of a criminal defendant.
- Can a lawyer call a W he knows will commit perjury?
Witness Perjury
A lawyer CANNOT call a witness that he knows will commit perjury.
A lawyer’s knowledge that evidence is false may be inferred from the circumstnaces.
If the lawyer LATER learns that a W committed perjury, the lawyer MUST take remedial measures.
Can a lawyer refuse that a Crim D testifies?
No - criminal D has the constitutional right to T on his own behalf. In this situation the lawyer should:
- try to persuade the CL that the evidence should NOT be offered
- attempt to withdraw from the case (if the persuasion is ineffective)
- If the attempt to withdraw is unsuccessful then: (ABA) disclose to the court confidential info if necessary OR (CA) must allow the defendant to testify in a narrative fashion. Disclosure to the court is prohibited (absent CL consent)
If a lawyer rb believes that the testimony is false, can he permit the CL to testify?
Yes – only if he rb belives (but does not know) that the testimony is false, he may permit or refuse to offer the testimony. (lawyer has discretion)
Duty not to bring frivolous claims
A lawyer has a duty to investigate the claims / defenses / arguments filed on behalf of a CL, and CANNOT bring or defend a proceeding unless there is a basis in law or fact for doing so and the claim is not frivolous.
A good faith argument for an extension, modification or reversal of existing law is NOT deemed frivolous.
CA - prohibition on harassment rule
The CA rules prohibit a lawyer from
seeking, accepting, or continuing employment to conduct a
defense or case without probable cause or for the purpose of harassing or maliciously injuring any person
Duty to preserve decorum
A lawyer may not communicate ex parte with or gift judge (except campaign contribution). L may not communicate with jurors during proceedings, seek to influence jurors or harass jurors.
Criminal Prosecutor Duties
- Must have probable cause to bring charges
- Make rb efforts to protect D’s right to counsel
- Refrain from extra judicial comments biased against D
- Disclose mitigating evidence to D
- and when P knows of new evidence creating rb likelihood that D did not commit the offense, must promptly disclose it to the court (CA)
Improper Influence?
A lawyer CANNOT seek to influence a judge, juror, prospective juror or other official by means prohibited by law.
Additionally – a lawyer CANNOT falsify evidence, counsel or assist a W to testify falsely or offer unlawful inducement to a W.
What are a lawyer’s duties to comply with discovery requests?
Under the ABA – a lawyer must make a rb diligent effort to comply with legally proper discovery requests by an opposing party.
A lawyer CANNOT make a frivolous discovery request.
In CA – no equivalent ethical rule.
Payment to Witnesses?
Lawyer cannot offer an unlawful inducement to a W or make payments to a W contingent upon the content of the T or the outcome of the case.
HOWEVER – a lawyer MAY pay a witness (unless prohibited by law) for a- expenses rb incurred (trave, hotel, meals during the time at trial), b- rb compensation for loss of time OR c- rb fee to an expert W.
Can a lawyer act as trial counsel when the lawyer is likely to be a W?
No - UNLESS:
* T relates to uncontested issue
* T relates to the nature + value of legal services rendered in the case
* L’s disqualification would create a substantial hardship on the C [ABA]
* L has informed written consent [CA only!)]
Duty to Not Threaten (CA)
The California rules prohibit a lawyer from threatening to present criminal, administrative, or disciplinary charges to obtain an unfair advantage in a civil
dispute.
