Duty of Candor: Tribunal, opposing counsel Flashcards
Does the duty of candor supersede the duty of confidentiality
IF disclosure is required under the duty of candor to prevent misrepresentation to tribunal or another party, disclosure is MANDATORY (not just permissive disclosure under 1.6)
What does duty of candor to the tribunal require of an attorney?
An attorney cannot KNOWINGLY make a False statement of fact to a tribunal.
Does NOT matter whether statement is material or not.
What does the prohibition against false characterization of controlling authority require of an attorney?
When writing a brief an Attorney MUST make the court aware of any contrary on-point controlling authority.
What does the prohibition against false statements from witnesses require of an attorney?
Is this duty different for criminal defense attorneys?
Generally, If an attorney reasonably believes that a witness (even a client) is going to offer false testimony, they can refuse to offer that testimony.
HOWEVER, if criminal defense, attorney must KNOW that the testimony FROM THEIR CLIENT is going to be false.
– can always try to talk them out of it
What should an attorney do if they discover that they have inadvertently put on false testimony?
The Attorney should take “reasonable remedial efforts” which MAY include disclosure to the tribunal if necessary
– Withdraw not sufficient
What does the General rule about criminal or fraudulent conduct DURING THE PROCEEDING require of an attorney?
If attorney KNOWS that a client is going to is engaging/has engaged in/ or intends to engage in criminal/fraud act related to the proceedings (i.e. bribing a witness/threatening the plaintiff, etc.)
Attorney must take reasonable remedial efforts including disclosure to the tribunal (and MAYBE withdraw unless it would not actually solve the issue)
MUST
1.) Know about misconduct
2.) Misconduct must relate to the proceedings
What does the duty to only bring meritorious claims require of an attorney?
How does that duty change for Criminal Defense attorneys?
Can only make arguments which are valid disputes of law/good faith argument to modify/reverse current law.
IF CRIMINAL DEFESNE: Can make the state prove all elements of a crime were met even if the case SHOULD BE a slam dunk
What does the duty to proceed with reasonable speed require of an attorney?
Cannot take actions which serve no other purpose than to drag out litigation/drive up expenses
What does the duty to avoid improper contact with the Judges and jury require of an attorney?
1.) Cannot seek to influence Judge or Jury through any means
2.) Cannot communicate ex parte during pendency of the case unless authorized by the court/required by law
BUT: CAN communicate with jurors after the case, UNLESS
1.) Prohibited by law/court order
2.) Juror communicates that they do not want to
3.) Communication is supposed to harass, miscommunicate,
What does the duty to avoid disruption of the tribunal require of an attorney?
Can’t engage in any conduct specifically meant to disrupt the court, no particularly impassioned speeches or histrionics
What does the prohibition against preventing access to evidence require of an attorney?
Can’t conceal, destroy, or alter anything which would potentially have evidentiary value – and cant induce someone else to do it.
What does the rule against complicity in falsifying evidence require of an attorney?
Cannot falsify evidence, or counsel another to do so, or offer an illegal inducement to a witness
What does the prohibition against disobeying the rules of a tribunal require of an attorney?
Must follow tribunal’s rules, UNLESS openly refuse based on assertion they have no duty under the rule
What does the prohibition against “gamesmanship” in discovery require of an attorney?
No frivolous discovery requests, must attempt to comply with discovery requests in good faith
What does the prohibition against allusions to impermissible evidence require of an attorney?
Can’t make any sort of allusion to impermissible evidence at trial
What does the prohibition against inducing a witness not to testify require of an attorney?
Can’t induce a witness not to testify against your client, UNLESS
1.) Relative or agent (employee) of client; AND
2.) reasonable belief that interests of witness will not be harmed
What out-of-court statements are prohibited are prohibited?
Statements regarding the investigation or litigation of a matter that they are personally participating on IF
1.) Likely to disseminate
2.) reasonably likely to cause MATERIAL PREJUDICE
What out-of-court statements are per se permissible
1.) The claim, offense, or defense involved in a matter and the identity of the parties involved (unless otherwise prohibited)
2.) Any information contained in the public record
3.) The fact that an investigation is underway
4.) Schedule for upcoming hearings
5.) Need for public assistance for obtaining information
6.) Need for public wariness
7.) Basic information about the defendant in a criminal case `
When may an attorney issue a corrective public statement about their client?
To protect their client from substantial undue prejudice from a recent publicity THEY DID NOT INITIATE
Does the prohibition on public statements impute to other attorneys in a firm/agency
Yes. Firm/agency subject to same prohibition against improper public statements; IF
1.) Likely to disseminate
2.) reasonably certain to cause material prejudice
May an attorney act as a witness where they are acting as an advocate?
An attorney cannot act as a witness in a proceeding that they are acting as an advocate; UNLESS
1.) testimony relates to uncontested issue
2.) Testimony relates to attorney’s services
3.) Would cause substantial hardship to client if attorney was disqualified
Can a client consent to an attorney acting as a witness and an advocate in the same setting?
No. Consent is not a remedy.
May a prosecutor file charges not supported by probable cause?
No.
Must a prosecutor take reasonable efforts to assure the accused is advised of their right to counsel?
Yes.
