duty to people other than client

Question 1

duty to 3rd parties: communicating with a represented person

Answer 1

if the lawyer knows the person is represented, the lawyer must not communicate with the person about the matter without the counsel’s permission
-applies even if the third party consents or initiates

*CA has same rule but unrepresented PARTY

Question 2

duty to 3rd parties: communicating with an unrepresented person

Answer 2

• lawyer must not state or imply he is disinterested
• must clear up misunderstandings about his/her role in the matter
• must not give advice other than to obtain counsel if he/she knows the client’s interest are adverse to the 3rd person’s

Question 3

duty to 3rd parties: dealing with third persons generally

Answer 3

if not discussing the matter & person is represented, or person is unrepresented:

• must not use means having no substantial purpose other than to embarrass, delay, or burden them
• must not use methods of obtaining evidence that violate their rights

Question 4

duty to court: duty of candor

Answer 4

must not knowingly

• make a false statement of fact or law to a tribunal
• fail to correct a false statement of material fact previously made to the tribunal by the lawyer
• fail to disclose controlling legal authority directly adverse to the position of the client, and not disclosed by opposing counsel
• offer evidence that you KNOW is false

Question 5

duty to opponent: fairness to opposing counsel

Answer 5

lawyer must not

• unlawfully obstruct other party’s access to evidence
• unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value
• falsify evidence
• knowingly disobey court rules
• make frivolous discovery requests
• fail to make reasonably diligent efforts to comply with the other party’s discovery requests
• make an argument that the lawyer doesn’t reasonably believe is relevant, or that will not be supported by admissible evidence
• assert personal knowledge of facts in issue
• state a personal opinion as to the justness of a cause, credibility of a witness, culpability of a civil litigant, or guilt or innocence of an accused
• ask a person other than the client to refrain from voluntarily giving relevant info to another party unless the person is a relative or an employee or other agent of the client and the lawyer reasonably believes that person’s interests won’t be adversely affected

Question 6

trial publicity

Answer 6

a lawyer must not make an extrajudicial statement -that the lawyer knows or reasonably should know will be disseminated by means of public communication
-and will have a substantial likelihood of materially prejudicing a proceeding

Question 7

prosecution’s special rules

Answer 7

• must not prosecute a charge the prosecutor knows is not supported by probable cause
• must make timely disclosure to the defense all evidence or info known to the prosecutor that tends to negate the guilt of the accused
• must make reasonable efforts to assure that the accused has been advised of the right to counsel and has been given reasonable opportunity to obtain counsel
• not seek to obtain from an unrepresented accused a waiver of important pretrial rights
• refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused
• exercise reasonable care to prevent investigators or others assisting the prosecutor from making an extrajudicial statement the prosecutor could not
• promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a convicted defendant didn’t commit the offense

Question 8

false testimony by non-client or civil party

Answer 8

if client insists on offering evidence the lawyer KNOWS is false, the lawyer must try to convince the client that the evidence should not be offered

• if that fails, the lawyer must refuse to offer the evidence
• must take reasonable remedial measures if lawyer discovers later that the evidence was false- seek the person’s cooperation in withdrawing the evidence, and if that fails may ask for permission to withdraw or must disclose to court (even if protected by A/C privilege)

MAY refuse to offer evidence lawyer reasonably believes is false

Question 9

false testimony by criminal defendant

Answer 9

lawyer must allow criminal defendant to testify even if the lawyer reasonably believes the testimony will be false

-must try to convince D not to testify falsely, may ask for permission to withdraw if that fails
-must disclose info to the court, even if protected by A/C privilege
CA: may use narrative form of questioning

Question 10

duty of candor to public: advertising and constitution

Answer 10

state may regulate subject to the 1st Amend commercial speech protections

• substantial govt interest
• direct advancement of interest
• narrowly tailored

Question 11

duty of candor to public: truthful advertising

*CA

Answer 11

must not be false or misleading.
*not create unjustified expectations or make unverifiable comparisons

CA: no guarantees, warranties, or predictions of result.
testimonials need to be accompanied by disclaimer that it is not a GWP

Question 12

duty of candor to public: solicitation

*CA

Answer 12

lawyer must not seek fee paying work* by initiating live* or phone contact with prospective client who

a) is not a lawyer
b) you have no prior personal, professional, family relationship with

*MPC: live includes chat rooms on internet, prob not email
CA: live is literally in person contact
-presumes contact at the scene of accident are improper b/c victims not in fit state to use judgment

*a nonprofit or someone working for free CAN

Question 13

duty to uphold dignity of profession

*CA

Answer 13

must behave honestly in all dealings, in and out of legal practice. must act to promote public confidence in the profession

duty not to engage in unauthorized or unlicensed practice of law
CA: beyond knowledge and capacity of layperson

• reporting violations- ABA requires lawyers to report anything raising question about honesty, trustworthiness, or fitness to practice.
• CA does not require reporting, but punishes knowing of a violation and not preventing it by counseling the violator or telling supervisor.

Question 14

duty to court: judge and jurors

Answer 14

must not seek to improperly influence them
must not communicate with them at all

CA: you can talk to jurors but must tell them they can refuse an interview

Question 15

duty to court: to expedite

Answer 15

ABA- duty to expedite the case

CA- duty not to delay cases to harass adversary or for your own personal gain

Question 16

permitted publicity references

Answer 16

nature of claim, offense, defense
identity of people involved (unless law prohibits)
info contained in public record
investigation of a matter is in progress
request for assistance in obtaining ev.
warning of danger

Question 17

sending letters- solicitation

Answer 17

he may send truthful, non-deceptive letters to people known to face specific legal problem
-must mark advertising material

**must not send if lawyer actually knows recipient does not want his services