Duties to Third Parties Flashcards
Opposing Party/Counsel
A lawyer owes a duty of fairness to the opposing party and counsel.
ABA and California rules, a lawyer must not:
* unlawfully obstruct another party’s access to evidence,
* unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or
* counsel or assist another person to do any such act
Special Role of Public Prosecutor
Prosecutor: Disclosing Evidence Late
A prosecutor has an affirmative duty to make timely disclosure to the defense of all evidence or information that tends to negate the guilt of the accused.
Asking witness to avoid giving info to opposing party
ABA Rules generally prohibit a lawyer from asking a person refrain from voluntarily giving information to another party.
Exception: When the person is:
* a client or client’s agent, employee or family member
* and lawyer reasonably believes the person’s interests won’t be harmed by not volunteering it
California does not have a specific counterpart rule, but this kind of conduct might violate the general prohibition against unlawfully obstructing an opponent’s access to evidence.
Trial Publicity
A lawyer who is participating in the litigation of a case must not make an **extrajudicial statement **that the lawyer knows or reasonably should know will be
* (a) disseminated by means of public communication and
* (b) will have a substantial likelihood of materially prejudicing the proceeding.
However, lawyer has right of reply - can make public statement that reasonable lawyer would believe is necessary to protect client from substantial undue prejudice of recent publicity not initiated by client or client’s lawyer
Did lawyer know members of press would attend? And therefore the statement would be disseminated to the press/public?
- Obviously yes if he holds press conference
Permitted references during trial publicity
A lawyer is permitted to state the offenses or defense involved in the case, and the identity of the persons involved.
Ex. “Dusty did not strike Vic” is OK because it reveals Dusty’s likely defense at trial. It’s also OK to identify the parties involved in the accident.
NOT permitted references during trial publicity
Statements amounting to opinions as to the guilt or innocence of a defendant are likely to have a material prejudicial effect on the proceedings. A potential juror who read and believed the statement would likely be swayed in favor of an acquittal.
Ex. of improper personal opinion
- “Dusty is innocent victim of witch-hunt” -personal opinion as to D’s innocence not OK
- Saying that the charges are a “witch-hunt” implies that the charges are unfounded and based on accusations unsupported by fact. These statements would discredit the integrity of the prosecution’s case.
- Attacking opposing counsel personally
Statement about judge/public office candidates (ex. DA)
ABA Rules provide that a lawyer must not make a statement that he knows is false or with reckless disregard as to its truth or falsityabout the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for a judicial or legal office.
California rule applies to judicial officials and candidates only (not to public legal officials and candidates).
Threatening misconduct charges to gain advantage
A lawyer must not threaten to bring disciplinary, administrative, or criminal proceedings for the purpose of gaining an advantage in a civil dispute. The lawyer may only report the lawyer’s conduct to the state bar.
Failure to report ethical violation
CA??
Under the ABA Rules, a lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority.
There is no corresponding California rule.
[It is unclear whether ___ knew that the lawyer had a personal interest that could interfere with the representation.] However, if the lawyer knew that ___ was engaging in a conflict of interest and did not report it, then s/he is subject to discipline under the ABA Rules.
Special Role of Public Prosecutor
Prosecutor: Probable Cause
A prosecutor must refrain from prosecuting a charge that the prosecutor KNOWS is not supported by probable cause
Duty to Third Persons
Client doing criminal/fraudulent conduct
A lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent.
Duty to Third Persons
Lawyer gets funds/property that third party is entitled to
Upon receiving funds, securities, or other property in which a client or third person has an interest, a lawyer must promptly notify the client or third person.
Duty to Third Persons/Public
Lawyer lies to third party
A lawyer must not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
**
Lawyer talks with person represented by other counsel
CA??
In the representation of a client, a lawyer must not communicate about the matter with a person she knows to be represented by counsel in the matter UNLESS:
* other counsel has granted permission or
* she is otherwise authorized by law or court order to make the communication
Rule applies even if the represented person initiated the communication or consented to it.
Company: ABA Rules provide that when the represented party is an organization, the lawyer must obtain the consent of the organization’s counsel before communicating with a constituent of the organization:
* (i) who supervises or regularly consults with the organization’s lawyer about the matter;
* (ii) who has authority to obligate the organization with respect to the matter; or
* (iii) whose conduct in the matter may be imputed to the organization.
The corresponding California Rule doesn’t include categories (i) and (ii), but similarly provides that the rule applies to any current officer, director, partner, or managing agent of the organization.
Duty to Accept Representation
Duty to Accept Representation (ABA only): Lawyer can’t avoid appointment to represent person by tribunal except for good cause
* Cause repugnant to lawyer
* Would cause unreasonable financial burden on lawyer
* Representation would violate RPC or other law
CA similar rule: lawyer promises not to reject cause of defenseless/oppressed for personal reasons
