Duties to the Court: Litigation Ethics Flashcards
FRCP 11
can’t file claims/defenses that are designed for improper purpose (to harass, delay, or increase cost of litigation), that are frivolous or aren’t arguments for pushing the law forward, that lack evidentiary support. Safe harbor provision added to allow attorneys 21 days for a mea culpa.
Representations to the Court.
(1) no improper purpose;
(2) legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information
Meritorious Claims and Contentions
a lawyer can be disciplined by the state authorities for conduct that would also violate Rule 11 – lots of leeway for arguments to push law forward, even if the lawyer believes the client will not prevail
“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. . .”* Comment 2:“ . . . Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail.”
Transactions With Persons Other Than Clients
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.
Don’t be a jerk rule and return what wasn’t meant for you.
Fairness to Opposing Party & Counsel: Litigation Ethics
“A lawyer shall not 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 the accused.
(I.e. I believe this witness is a liar)
Expediting Litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. (Play nice rule)
Candor
A lawyer shall not knowingly:(1) 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;
(2) 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; . . .(c) The duties stated in paragraph. . . (a) . . . continue to the conclusion of the proceeding . . .*
[CMT.13] A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.* [CMT. 4] The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.
Communication with Judges: Litigation Ethics
A lawyer shall not:(a) Seek to influence a judge, juror or prospective juror or other official by means prohibited by law(b) Communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;(c) Communicate with a juror or prospective juror after discharge of the jury if:(1) The communication is prohibited by law or court order;(2) The juror has made known to the lawyer a desire to not communicate; or(3) The communication involves misrepresentation, coercion, duress or harassment.
Lawyers: Litigation Ethics
A lawyer shall not:
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; . ..(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:(1) the person is a relative or an employee or other agent of a client; and(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.
FRCP Discovery Abuses
Apply to both written and oral discovery: 11(D): This rule does not apply to disclosures and discovery requests, responses, objections, and motions . . .
16(F): sanctions if you “fail to obey a scheduling order or pretrial order,” or “fail to participate [in a pretrial conference] in good faith”
26(G): requires you to sign all disclosures, discovery requests, responses, and objections, and to certify that any such papers are warranted in fact and law and not improper.
30(D): all objections at deposition “must be stated concisely and in anon-argumentative and non-suggestive manner”; court can stop orlimit deposition being conducted in bad faith.
37: sanctions if you fail to comply with discovery ordersKnow FRCP 37 for the exam!
Poulis Factors
Extent of party’s personal responsibility* Prejudice to adversary* History of dilatoriness (delay)* Whether the attorney’s conduct was willful or in bad faith* Alternative sanctions* Merit of underlying claim
FRCP 37: Sanctions
Rule 37 authorizes the court to direct that parties or attorneys who fail to participate in good faith in the discovery process pay the expenses, including attorney’s fees, incurred by other parties as a result of that failure.
