Fairness to Opposing Party and Related Issues

Question 1

4.1(a): truthfulness in statements to others (ie transactions with people other than clients)

Answer 1

In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person

OR
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6

Question 2

4.1(a): truthfulness in statements to others (ie transactions with people other than clients)

Comment one : Misrepresentation

Answer 2

There is typically not an affirmative duty to inform the opposing party of relevant facts

However partial truths or omissions can count as misrep, as well as incorporating, adopting, or affirming a statement of another

Question 3

4.1(a) and Puffery

Answer 3

Puffery
Statements that parties to the negotiation would not be expected to justifiably rely upon; misrepresentations are false statements of material fact.

Question 4

Is exaggerating the same thing as lying?
Comment two

Answer 4

“This rule refers to STATEMENTS OF FACT. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material facts.

Question 5

P’s attorney says to D’s attorney in a mediation – “My client isn’t accepting anywhere close to your measly $10,000 settlement offer.” P has given the attorney the authority to accept anything over $10,500. Has P’s attorney violated the model rules? See comment 2.

Answer 5

No, probably not.

Question 6

Attorney for company C is negotiating with its employees’ labor union. Attorney says that providing additional vacation days would cost the employer $1000 per day per employee. The Attorney knows it would actually cost only $500 per day per employee.

Misrep or puffery?

Answer 6

Misrepresentation, not puffery.

Question 7

4.1(b): Disclosing in order to avoid violating 1.2(d)

Answer 7

A lawyer shall not knowingly… fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting client in crime/fraud

Question 8

when is 4.1(b): Disclosing in order to avoid violating 1.2(d) triggered

A lawyer shall not knowingly… fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting client in crime/fraud

Answer 8

This rule is triggered when the only way to avoid assisting client in crime/fraud is to disclose to third party

Question 9

comment three to 4.1b

crime or fraud by client – aka noisy withdraw

Answer 9

“Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like”

Question 10

when can a lawyer disclose under 4.1b

Answer 10

BUT ONLY WHEN 1.6 ALLOWS DISCLOSURE
If 1.6 exception applies – YOU MUST DISCLOSE UNDER 4.1
If a 1.6 exception does not apply – CANT DISCLOSE

Question 11

flowchart for 4.1 disclosure to third party

Answer 11

check

Question 12

Candor to others v candor to the court

What if the client in the Simulation at the Closing was testifying at trial and lied about the defaults? Assume the attorney knows about the defaults, like in the Simulation

what does this tell us in terms of how the MRs prioritize candor to the court vs others?

Answer 12

Attorney MUST tell the court, regardless of Rule 1.6.

Tell us that the model rules care more about lying to the court!

Question 13

when it comes to lying to the court, what key difference is there compared to lying to third parties

Answer 13

When if comes to lying to the court, you don’t even look at 1.6

When you’re talking about lies to third parties, you still need to look to 1.6

Question 14

4.4(b): inadvertent disclosures

Answer 14

Attorney must notify the sender when attorney knows or reasonably should know that the info was inadvertently sent

Does not prohibit the attorney from reading, deleting or using the info

Question 15

4.4(b): inadvertent disclosures

How does this relate to the ACP? Does inadvertent disclosure waive acp?

Answer 15

The rule doesn’t really give us a clear answer
States have proposed

Mass.R.Evid.Section 523(no waiver if disclosure was unintentional and reasonable precautions were taken to prevent disclosure).

Question 16

What would be a con of inadvertent disclosure waving ACP

Answer 16

Harms the client via the negligence the lawyer

Question 17

What would be a pro of inadvertent disclosure waving ACP

Answer 17

Does Not undermine purpose of ACP

Question 18

is metadata included under 4.4(b)

Answer 18

Forgetting to delete metadata can be bad
Its included under 4.4(b) so you have to notify if you know the metadata was sent on accident
South carolina has the same rule

Question 19

3.4 A - D : fairness to opposing parties

Answer 19

Cannot
* Falsify, destroy, conceal evidence
* Tell a witness to testify falsely
* Make frivolous discovery requests
* Fail to comply with reasonable discovery requests * Disobey court orders

Question 20

which is broader – 4.1 truthfulness to third parties or 3.4 fairness to opposing parties

Answer 20

4.1 is broader
3.4 is about litigation and opposing parties
A narrower set of situations

Question 21

3.4(b) Witnesses

Answer 21

Attorney cannot “offer an inducement to a witness that is prohibited by law”
* See comment 3: can pay an expert witness on terms permitted by law.

Question 22

rst section 117 summarizes the law on compensating witnesses

Answer 22

A lawyer may not offer or pay to a witness any consideration:
(1) in excess of the reasonable expenses of the witness incurred and the reasonable value of the witness’s time spent in providing evidence, except that an expert witness may be offered and paid a noncontingent fee;
(2) contingent on the content of the witness’s testimony or the outcome of the litigation; or
(3) otherwise prohibited by law.

Question 23

how does restatement treats fact witnesses and expert witness differently

Answer 23

Fact or expert you can pay to COMPENSATE REASONABLY
There is a difference between compensating what’s lost and compensation based on the outcome of the case

Question 24

3.4(e) Attorney arguments Usually comes up in closing
Ensures that attorney is not prejudicing the jury

Answer 24

During trial, an attorney cannot:
* Refer to irrelevant or inadmissible evidence

Assert personal knowledge of contested facts

Cant give personal opinion about
The justness of a cause
The credibility of a witness
The guilt/innocence of the accused

Question 25

whats an example of a lawyer Referring to irrelevant or inadmissible evidence

Answer 25

Defense lawyer’s opening statement: “the plaintiff had offered to settle his claim for a small sum. ”

Question 26

whats an example of a lawyer asserting personal knowledge of contested facts

Answer 26

Defense L says “the plaintiff claims he cannot walk after getting into a fight with my client, but I saw him walking down the street last week.”

Question 27

3.4(f)
An attorney shall not request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

Answer 27

(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.