Fairness to Opposing Party and Related Issues Flashcards
4.1(a): truthfulness in statements to others (ie transactions with people other than clients)
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
4.1(a): truthfulness in statements to others (ie transactions with people other than clients)
Comment one : Misrepresentation
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
4.1(a) and Puffery
Puffery
Statements that parties to the negotiation would not be expected to justifiably rely upon; misrepresentations are false statements of material fact.
Is exaggerating the same thing as lying?
Comment two
“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.
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.
No, probably not.
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?
Misrepresentation, not puffery.
4.1(b): Disclosing in order to avoid violating 1.2(d)
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
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
This rule is triggered when the only way to avoid assisting client in crime/fraud is to disclose to third party
comment three to 4.1b
crime or fraud by client – aka noisy withdraw
“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”
when can a lawyer disclose under 4.1b
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
flowchart for 4.1 disclosure to third party
check
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?
Attorney MUST tell the court, regardless of Rule 1.6.
Tell us that the model rules care more about lying to the court!
when it comes to lying to the court, what key difference is there compared to lying to third parties
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
4.4(b): inadvertent disclosures
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
4.4(b): inadvertent disclosures
How does this relate to the ACP? Does inadvertent disclosure waive acp?
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).
What would be a con of inadvertent disclosure waving ACP
Harms the client via the negligence the lawyer
What would be a pro of inadvertent disclosure waving ACP
Does Not undermine purpose of ACP
is metadata included under 4.4(b)
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
3.4 A - D : fairness to opposing parties
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
which is broader – 4.1 truthfulness to third parties or 3.4 fairness to opposing parties
4.1 is broader
3.4 is about litigation and opposing parties
A narrower set of situations
3.4(b) Witnesses
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.
rst section 117 summarizes the law on compensating witnesses
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.
how does restatement treats fact witnesses and expert witness differently
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
3.4(e) Attorney arguments Usually comes up in closing
Ensures that attorney is not prejudicing the jury
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
whats an example of a lawyer Referring to irrelevant or inadmissible evidence
Defense lawyer’s opening statement: “the plaintiff had offered to settle his claim for a small sum. ”
whats an example of a lawyer asserting personal knowledge of contested facts
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.”
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:
(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.
