Duty of Fair Representation

Question 1

Improprieties Involving Evidence and Presentation of a Case (9)

Answer 1

A lawyer must not:

(1) unlawfully obstruct another party’s access to evidence, or alter, spoliate, or otherwise destroy evidence;
(2) falsify evidence or counsel another to do so;
(3) knowingly disobey an obligation under the rules of the court;
(4) make frivolous discovery requests or objections to valid discovery requests;
(5) fail to return a document sent inadvertently;
(6) allude to any matter in trial that will not be supported by admissible evidence, or assert personal knowledge of facts or personal opinion as to the facts, credibility, or justice of a case;
(7) deceive the court, opposing counsel, or an opposing party by making false statements or misleading statements or failing to disclose a material fact when disclosure is necessary to prevent a fraudulent or criminal act; or
(8) improperly contact an opposing party that counsel knows is represented by counsel.

Additionally, CA forbids a lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute.

Question 2

Criminal Defendants Who Testify Falsely

Answer 2

A lawyer must allow the defendant to testify even if the lawyer reasonably believes that the testimony will be false. However, in such a case, the lawyer must (1) try to convince the defendant not to testify falsely; (2) if that fails, ask to withdraw; and (3) disclose information to the tribunal to set the record straight, even if confidential.

In CA, the (1) and (2) are the same, but (3) differs. The lawyer may call the defendant as a witness and question him normally up to the point where he knows the false testimony will begin. There, the lawyer may allow the defendant to testify in a narrative fashion. He may not use false testimony in his closing argument.

Question 3

Contact With a Represented Party

Answer 3

While representing a client, a lawyer must not communicate about the matter with a person he knows to be represented by counsel in the matter unless the person’s counsel has granted permission or he is otherwise permitted by the law to make the communication.

Question 4

Contact With an Employee/Member of a Represented Organization/Opposing Party

Answer 4

The lawyer must get the consent of the organization’s counsel before communicating with a constituent of the organization

(1) who supervises or regularly consults with the organization’s lawyer about the matter;
(2) who has authority to obligate the organization with respect to the matter; and
(3) whose conduct in the matter may be imputed to the organization.

Question 5

Duties of a Public Prosecutor (9)

Answer 5

There are nine affirmative duties of a public prosecutor in a criminal case:

(1) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(2) make reasonable efforts to ensure that the accused has been advised of the right to and procedure for obtaining counsel;
(3) not seek to obtain from unrepresented accused a waiver of important pretrial rights;
(4) make timely disclosure to the defense of exculpatory evidence and mitigating circumstances;
(5) exercise reasonable care to prevent investigators and other law enforcement personnel from engaging in extrajudicial statements that the prosecutor would be barred from making;
(6) refrain from subpoenaing an attorney in a criminal proceeding to give evidence about a client unless the prosecutor reasonably believes that the information is not protected by privilege, the evidence is essential to an ongoing investigation or prosecution, and there is no feasible alternative;
(7) refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused, except for statements that are necessary to inform the public of the nature an extent of the prosecutor’s action and serve a legitimate law enforcement purpose;
(8) promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the subject offense; and
(9) seek to remedy a conviction when the prosecutor knows of clear and convincing evidence that a defendant was convicted for an offense defendant did not commit.