Kaplan Mod 6 Flashcards
What is the rule regarding frivolous claims?
Attorneys shall not bring or defend frivolous claims
What is the difference between a frivolous and a non-frivolous claim?
A non-frivolous claim is one that has a basis in law and fact, that an attorney can make a good-faith argument in support of
Is a claim considered to be frivolous just because the attorney thinks the client will not prevail?
No, as long as the attorney is bringing the claim in good faith, and the same is true if the attorney expects in good faith that further information will come out in depositions and discovery
What is the rule about frivolity in a defendant’s criminal case?
It is not frivolous for the defendant’s attorney in a criminal case or any case that could result in incarceration to require the prosecution to establish every element of the case
What is the reason for the rule about an attorney being allowed to require that the prosecution establish every element in a criminal case not being frivolous?
Because the rules of professional conduct are subordinate to those of due process that require the prosecution to prove each and every element beyond a reasonable doubt
What is the test to determine if a lawyer is expediting litigation or not?
To ask if the attorney is acting in good faith in delaying the litigation. Is there a legitimate reason for the delay, or is the attorney just trying to gain an improper benefit from it or frustrate the opposing party? There must be a substantial purpose in the client’s best interest, and not just delay or convenience
If a client is just trying to cause trouble for his ex-wife by deposing her coworkers, and no real discovery will come from the deposition, is that proper?
No if it is not done in good faith, then it would be considered not to be expediting litigation
What is involved in the rule of candour toward the tribunal?
An attorney has a duty not to knowingly mislead the tribunal which can happen by: making a false statement of law or fact, presenting false evidence, failing to correct a false statement, failing to disclose adverse legal authority in the controlling jurisdiction, failing to take reasonable remedial measures or disclose to the tribunal false evidence offered or intended to be offered by a client or witness
Attorneys have a continuing obligation to correct things with the tribunal when what?
When they find out about them
If a client intends to give false testimony or wants you to introduce false evidence, what are the steps you must take?
- try to persuade them not to
- refuse to offer the testimony or evidence. But if this is a criminal case, the D has a constitutional right to testify
- seek to withdraw by revealing only as much information as necessary to make the request. If withdrawal is not granted….
- make a disclosure to the tribunal, even if it means revealing protected confidential information
What are the rules included in fairness to opposing party?
An attorney cannot unlawfully obstruct access, alter, destroy, falsify, or conceal evidence, counsel or assist a witness in giving false testimony, introduce false testimony, knowingly disobey an obligation under the rules of the tribunal, make a frivolous discovery request, or fail to comply with a discovery request
What is the reason for the rules about trial publicity both pre-trial and mid-trial?
It can taint a jury pool or prejudice a jury that is not sequestered
What is the rule for attorneys regarding trial publicity?
Attorneys cannot make public extrajudicial statements that would have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter
Is it required that an attorney make all efforts to expedite litigation?
No, the attorney only has to take reasonable efforts to do that
If a criminal defence lawyer reasonably knows the client did commit the crime, is it frivolous for the attorney to require the prosecution to establish every element of the case beyond a reasonable doubt?
No
