Duty to Opposing Party Flashcards
Duty of Fairness to Opposing Party
Includes big three duties:
1) Evidence: May not restrict an opposing party’s access to evidence or unlawfully alter, destroy, hide, or help another person do any of these things.
2) Witnesses: Cannot pay a witness to induce specific testimony, unless for 1) reasonable court expenses; 2) expert witness fees.
3) Discovery: Cannot make a frivolous discovery request or fail to comply with a legal proper discovery request of an opposing party.
ESSAY TIP: What are some ways a party could violate their Duty of Fairness to opposing?
1) To unduly delay the case
2) Harass opposing party
3) Increase cost of litigation
Look for facts that point to these motives/results!
Duty not to contact Represented Party
May not directly or indirectly speak to adverse client in relation to subject matter of representation when attorney knows individual is represented by counsel.
EXCEPTION:
1) Opposing counsel consents [NOT OPPOSING CLIENT]
Duty not to contact Represented Person FROM AN ORGANIZATION
[ABA]
Under the Model Rules, in the case of a represented organization, a lawyer is prohibited from communicating with a constituent of the organization who has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
Duty not to contact Represented Person FROM AN ORGANIZATION
[CALIFORNIA]
Under the CRPC, in the case of a represented organization, a lawyer is prohibited from communicating with
(i) a current officer, director, partner, or managing agent of the organization or
(ii) a current employee, member, agent or other constituent of the organization if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.
Duty regarding Inadvertent Disclosures
[ABA]
Under the MR, a lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.
Additionally, the lawyer should return the writing to the sender, try to reach an arrangement with the sender, or seek guidance from a tribunal.
Duty regarding Inadvertent Disclosures
[CALIFORNIA]
Under the CRPC, where it is reasonably apparent to a lawyer that a writing was inadvertently sent, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall:
(i) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and
(ii) promptly notify the sender.
Additionally, the lawyer should return the writing to the sender, try to reach an arrangement with the sender, or seek guidance from a tribunal.
Duty to Unrepresented Persons
May not act “disinterested” and must make reasonable efforts to clarify role if there is a misunderstanding.
If a conflict is discovered, may only tell unrepresented person to seek counsel.
