Duties to the court Flashcards
what is 3.1 meritorious claims and contentions
Basically rule 11 in civpro
lawyer cant bring a claim unless their is a basis in law or fact that is not frivouls,, which includes a good faith argument for extention, change, or revsrsal of already exsisting law
whats the rationale behind 3.1 meritorious claims and contentions
To prevent financial drain
3.1 requires a claim to have a basis in law or fact – what does this mean
“Basis in law”
Conduct legal research to ensure viable legal argument
Ok if the lawyer thinks the client has a losing case, as a matter of law
Ok if the lawyer is making a good faith argument to change the existing law
Not ok= the chatgpt case
Basis in fact”
Not frivolous if the attorney has not sustained all the facts yet, especially before discovery (comment two)
what does comment two say about basis in fact
the filling of an action or defense or similar action taken for a client is not friviouls just because the facts have not been fully established
what does 3.1 say in particular about a a lawyer to a d in a criminal proceeding or one that could result in incarceration
may nevertheless so defend the proceeding as to require that every element of the case be established.
ie even if all the facts are stacked agains the d that says they are guilty, the lawyer can still take the case and allow the client to plead not guilty without violating the rules
Rule 3.2 expiditing litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client
Ie cant delay via attorney’s own interest
what is a key question to ask to see if 3.2 has been violated
ie. A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client
Question to ask: does the course of action have another purpose other than to delay?
Just because its helping the client doesn’t necessarily mean that is always allowed either
Rule 3.3(A)(2) Adverse legal authority
shall not knowingly “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.
Rule 3.3(A)(2) Adverse legal authority
what does ‘direclty adverse’ mean
how do good lawyers aviod violating this rule
Ie law that would not be in your favor
Good lawyers don’t ignore bad case law!
when is the 3.3(a)(2) obligation to disclose directly adverse law triggered
The obligation is triggered when the other side doesn’t disclose!
You dont need to cite it if the other side does!
Rule 3.3(a)(1) False statements and failure to correct
An attorney shall not 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 to the tribunal BY THE LAWYER/ CLIENT’S STATEMENT
ie you don’t violate the rule if you fail to correct false statements made by the opposing counsel
3.3(d) ex parte
In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
what is an ex parte proceeding
a legal proceeding where only one party is present or given the opportunity to be heard.
3.3(a)(3) offering false evidence
A lawyer shall not knowingly…offer evidence that the lawyer knows to be false.
If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
If 3.3(a)(3) offering false evidence is triggered how is 1.6 confidently implicated
must provide info Even if info is otherwise protected under 1.6 (see comment 10)
3.3 uses the term knowlingly – what def of knowlege is required to trigger the rule
Knows= actual knowledge
is 3.3 limited to trial
Not just at trial (includes things like depositions)
3.3(b) remedial measures
A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal
what may trigger 3.3(b) remedial measures
Perjury can trigger this rule
Hiding or destroying evince, brining a witness, intimidating a juror
See comment 12
3.3(c) duration of obligation
The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
See comet 13
how does client purjury implicate the duty of competence
If you’re actively avoiding knowledge to avoid triggering the duty of candor, you are not acting as a competent lawyer
Lawyer finds out about perjury after fact
You’re not supposed to run right to the court after learning after the fact
Comment 10
1. Confer w the client, if that doesn work, withdraw, if doing so will undo the effect of the false evidence
If those don’t work, then you disclose to tribunal
And only disclose what is necessary
do flow for lawyer finding out about perjury after the fact
check
What if you know/reasonably believe a client or witness may lie
Do you KNOW that his testimony is false?
If yes– try to talk the client out of it; if that doesn’t work, you cannot put the client on the stand (see comm 6)
If no- if only reasonable belief, MAY refuse to call client ot the stand (but if crim d, must let them testify) (com 8)
draw flow for if you know/believe a client may lie
check
nix – Perjury and criminal defendants
Whiteside was convicted of murder and claimed ineffective assistance of counsel after his lawyer, Robinson, warned him against committing perjury.
Criminal D have a constitutional right to testify but not to commit perjury.
draw the knowlege chart in terms of whether or not to put client/witness on the stand
check
if you think a client may lie but still must allow tjem on the stand, what are the two alternatives
Narrative testimony
Business as usual approach
