Duty of Fairness to Adversaries Flashcards
Communication with a Represented Person
When a lawyer knows that a person is represented by counsel in a matter, the lawyer CANNOT speak to that person concerning the matter UNLESS:
(a) the lawyer has permission from person’s lawyer – the represented person solely agreeing to speak is insufficient;
(b) for communications authorized by law or a court order; OR
(c) for communications with a public official, board committee, or body [CA only].
• Subject to the exceptions above, this rule also covers any employee or agent of an organization whose communication might bind or be imputed to the represented organization.
Trial Publicity – Extrajudicial Statements to the Public (General Rule)
A lawyer participating in an investigation or litigation (i.e. prosecutor, defense counsel) CANNOT make extrajudicial statements to the public on that matter, which (1) the lawyer knows (or should know), (2) will be disseminated by means of public communication, AND (3) will have a substantial likelihood of materially prejudicing the case or influencing jurors/potential jurors.
Trial Publicity – Extrajudicial Statements to the Public (Exceptions to General Rule)
Statements:
(1) to protect the client from substantial undue prejudice from recent publicity that was not self-initiated – the statement must be limited as is necessary to mitigate the adverse publicity;
(2) of the claim, offense, defense, or identity of persons (unless prohibited by law);
(3) information in a public record;
(4) to inform the public of an ongoing investigation;
(5) requesting assistance in obtaining evidence;
(6) warning of danger when a likelihood of substantial harm exists; and
(7) certain information in a criminal case – identity/residence/ occupation/family-status of the accused, info necessary to apprehend the accused, fact/time/place of arrest, identity of investigating/arresting officers and agencies, and length of investigation.
Trial Publicity – Extrajudicial Statements to the Public (Prosecutor’s special duty)
Prosecutors MUST exercise reasonable care to prevent others under their supervision/direction from making extrajudicial statements that the prosecutor would be
prohibited from making.
Special Rules for Prosecutors–Prerequisite to Prosecuting a Crime
Prosecutors in criminal cases are often held to a higher standard because they have a duty to administer justice. Prosecutors may only proceed with a case if probable cause exists. Probable cause exists if there are (1) sufficient facts, (2) to lead a reasonable person to believe, (3) that a crime was committed, and (4) that the defendant committed the crime.
Special Rules for Prosecutors–Exculpatory Evidence
Prosecutors MUST timely disclose any exculpatory or mitigating evidence (evidence that tends to negate guilt) known to the prosecutor within a sufficient time to allow the defendant to properly prepare for trial. An exception exists when a protective order of the court relieves the prosecutor of this responsibility.
Special Rules for Prosecutors–Assurances to the Defendant
Prosecutors must make reasonable efforts to assure that the accused has been advised of the right to (and procedure for obtaining) counsel, and has been given reasonable opportunity to obtain counsel.
Special Rules for Prosecutors–Seeking waiver of pretrial rights
Prosecutors CANNOT seek to obtain from an unrepresented accused a waiver of important pretrial rights (i.e. the right to a preliminary hearing).
Special Rules for Prosecutors–Pros knows of evidence establishing Defendant did not commit the crime
A prosecutor MUST seek to remedy a conviction when he knows of clear and convincing evidence establishing that a convicted defendant did not commit the crime.
Special Rules for Prosecutors–New Information about a previously convicted defendant
A prosecutor MUST promptly disclose new credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the crime. If the conviction was obtained in the prosecutor’s jurisdiction, the prosecutor MUST make reasonable efforts to cause an investigation to determine if the defendant was wrongly convicted.
Threatening Criminal, Administrative, or Disciplinary Charges–CA
In CA, a lawyer CANNOT threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.
o This rule DOES NOT apply to: (a) a threat to bring a civil action; (b) actually bringing such charges; (c) stating that the lawyer will pursue all available remedies; OR (d) a threat to initiate a contempt proceeding for failing to comply with a court order.
Threatening Criminal, Administrative, or Disciplinary Charges–ABA
Under the ABA, there is no equivalent rule.
