Duty of Candor: Tribunal, opposing counsel

Question 1

Does the duty of candor supersede the duty of confidentiality

Answer 1

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)

Question 2

What does duty of candor to the tribunal require of an attorney?

Answer 2

An attorney cannot KNOWINGLY make a False statement of fact to a tribunal.

Does NOT matter whether statement is material or not.

Question 3

What does the prohibition against false characterization of controlling authority require of an attorney?

Answer 3

When writing a brief an Attorney MUST make the court aware of any contrary on-point controlling authority.

Question 4

What does the prohibition against false statements from witnesses require of an attorney?

Is this duty different for criminal defense attorneys?

Answer 4

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

Question 5

What should an attorney do if they discover that they have inadvertently put on false testimony?

Answer 5

The Attorney should take “reasonable remedial efforts” which MAY include disclosure to the tribunal if necessary

– Withdraw not sufficient

Question 6

What does the General rule about criminal or fraudulent conduct DURING THE PROCEEDING require of an attorney?

Answer 6

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

Question 7

What does the duty to only bring meritorious claims require of an attorney?

How does that duty change for Criminal Defense attorneys?

Answer 7

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

Question 8

What does the duty to proceed with reasonable speed require of an attorney?

Answer 8

Cannot take actions which serve no other purpose than to drag out litigation/drive up expenses

Question 9

What does the duty to avoid improper contact with the Judges and jury require of an attorney?

Answer 9

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,

Question 10

What does the duty to avoid disruption of the tribunal require of an attorney?

Answer 10

Can’t engage in any conduct specifically meant to disrupt the court, no particularly impassioned speeches or histrionics

Question 11

What does the prohibition against preventing access to evidence require of an attorney?

Answer 11

Can’t conceal, destroy, or alter anything which would potentially have evidentiary value – and cant induce someone else to do it.

Question 12

What does the rule against complicity in falsifying evidence require of an attorney?

Answer 12

Cannot falsify evidence, or counsel another to do so, or offer an illegal inducement to a witness

Question 13

What does the prohibition against disobeying the rules of a tribunal require of an attorney?

Answer 13

Must follow tribunal’s rules, UNLESS openly refuse based on assertion they have no duty under the rule

Question 14

What does the prohibition against “gamesmanship” in discovery require of an attorney?

Answer 14

No frivolous discovery requests, must attempt to comply with discovery requests in good faith

Question 15

What does the prohibition against allusions to impermissible evidence require of an attorney?

Answer 15

Can’t make any sort of allusion to impermissible evidence at trial

Question 16

What does the prohibition against inducing a witness not to testify require of an attorney?

Answer 16

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

Question 17

What out-of-court statements are prohibited are prohibited?

Answer 17

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

Question 18

What out-of-court statements are per se permissible

Answer 18

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 `

Question 19

When may an attorney issue a corrective public statement about their client?

Answer 19

To protect their client from substantial undue prejudice from a recent publicity THEY DID NOT INITIATE

Question 20

Does the prohibition on public statements impute to other attorneys in a firm/agency

Answer 20

Yes. Firm/agency subject to same prohibition against improper public statements; IF

1.) Likely to disseminate
2.) reasonably certain to cause material prejudice

Question 21

May an attorney act as a witness where they are acting as an advocate?

Answer 21

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

Question 22

Can a client consent to an attorney acting as a witness and an advocate in the same setting?

Answer 22

No. Consent is not a remedy.

Question 23

May a prosecutor file charges not supported by probable cause?

Answer 23

No.

Question 24

Must a prosecutor take reasonable efforts to assure the accused is advised of their right to counsel?

Answer 24

Yes.

Question 25

May a prosecutor induce a defendant into waiving pretrial rights?

Answer 25

No.

Question 26

May a prosecutor call an attorney in front of a grand jury for any reason?

Answer 26

NO. Only under specific circumstances

Question 27

What out-of-court statements are prohibited by prosecutors

Answer 27

any statement likely to heighten public condemnation of the accused, unless informing the public/law enforcement purposes

Question 28

What is the procedure if the prosecution discovers evidence which would create a reasonable likelihood that the accused did not commit the offense?

Answer 28

If PRIOR to conviction: Must disclose promptly

If AFTER: MUST
1.) Promptly disclose
2.) investigate to determine whether defendant was convicted of crime they did not commit

IF C&C evidence that def did not commit the crime, attorney should take action to remedy (including reversing conviction)

Question 29

May an attorney act as an advocate in a non adjudicative hearing?

Answer 29

Yes, BUT need to make the nature of appearance noted AND still must act in accordance with rules of professional conduct.