Interaction with Court System or Opposing Counsel? Flashcards
What issues arise when lawyer interacts with court system or opposing party?
Candor, Fairness, Decorum
“Courts Feel Differently”
What is the duty of candor?
Under ABA/CA rules a lawyer has a duty to not:
1. knowingly make a false statement of material fact or law, or fail to correct it.
2. Offer false evidence (including witnesse or client)
3. Fail to disclose controlling, directly adverse authority.
What may a lawyer do if provided with evidence he reasonably believes is false?
A lawyer “may” refuse to offer evidence he “reasonably knows is false”
Also, a lawyer may refuse to disclose “adverse facts”
Under ABA/CA rules, what happens if lawyer “reasonably believes” testimony of client will be false?
Lawyer must allow defendant to testify.
Under ABA/CA what should lawyer do if lawyer, “knows” defendant intends to commit perjury (testify falsely)?
Lawyer must:
1. try to dissaude client,
2. ask the court to withdraw, or
3. allow client to testify in narrative fashion
What should lawyer do if client perjures themself under ABA/CA rules?
Under ABA/CA, if lawyer is unable to dissaud client, withdraw, or allow testimony in narrative fasion:
ABA - may disclose false evidence to tribunal as reasonably necessary
CA - may disclose to court, unless confidential (then, may only disclose to prevent death or substantially bodily harm)
What is the duty of fairness to opposing party?
Under ABA/CA rules a lawyer may not engage in dishonest conduct or trick the opposing party.
What are examples of violations of fairness?
1) Tampering with evidence (alter, hide, destroy evidence, or witnesses)
2) Failing to Produce Incriminating Evidence (must trun it over to opposing party)
3) Reading Inadvertent Disclosure (Must stop reading and notify sender)
4) Failing to Expedite Litigation (make reasonable efforts to expedite litigation)
Under CA rules, what is the “threat rule”
A lawyer may not threaten either “criminal,” “administrative”, or “disciplinary charges” to gain advantage in a “civil” case.
What is the duty to preserve decorum?
Under ABA/CA rules lawyer may not communicate “ex parte” with or gift a judge (except campaign contributions).
Under ABA/CA rules a lawyer may not communicate with jurors during proceedings, seek to influence jurors or harras jurors.
Can a lawyer be a witness?
Under ABA/CA - a lawyer may not advocate at a trial where he is likely to be a witness, UNLESS testimony relates to uncontested issue, nature and value of legal services.
Under ABA a lawyer may be a witness where there is substantial hardship on client.
Under CA a lawyer may be a witness if lawyer obtained client informed written consent
What are the duties to the court system and opposing party as it relates to criminal prosecutors?
Under ABA/CA rules criminal prosecutors have duties to:
1) Have probable cause to bring charges,
2) Make reasonable efforts to protect defendants right to counsel,
3) Refrain from extrajudicial comments biased against defendant
4) Disclose mitigating evidence to defendant
Under CA rules, prosecutor must disclose “new evidence” creating reasonable likihood that defendant did not commit crime
