Lawyer as Advocate

Question 1

candor to tribunal - false statements of law or fact

Answer 1

lawyer must not knowingly make a false statement of fact or law to the tribunal

• must correct false statements of material fact
• in ex parte proceeding, must inform tribunal of all material facts (including harmful to client) that will help tribunal make informed decision
• must not knowingly fail to disclose legal authority controlling in jx that is directly adverse to client’s position that has not been disclosed by OC

CA: also can’t knowingly misquote authority

Question 2

candor to tribunal - false evidence

Answer 2

must not offer evidence that they know is false, or have reasonable belief is false (except for criminal defendant’s testimony on their own behalf)

• reasonable remedial measures if they offered false evidence
  1) urge client to cooperate in withdrawing/correcting
  2) if unsuccessful, seek to withdraw if necessary or take other measures to strike evidence
  3) disclose situation to judge

CA: cannot disclose to judge, but can withdraw

Question 3

false evidence - perjury by criminal defendant client

Answer 3

ABA: if lawyer knows testimony is false, must take reasonable remedial measures (urge client to withdraw/correct, seek to withdraw or take other measures to strike the evidence, disclose to judge if needed)

CA: offer D’s testimony in narrative form if made reasonable efforts to dissuade the client from testifying falsely and has unsuccessfully sought permission to withdraw

Question 4

when do candor obligation end

Answer 4

continue until the end of proceedings (final judgment affirmed on appeal or time for appeal has expired)

Question 5

no frivolous claims or defenses

Answer 5

can’t take position unless there is basis in law or fact for doing so and can make good faith argument

OK to make prosecutor prove every necessary element of case

CA: also prohibits lawyer from bringing / continuing an action/defense/etc without probable cause and for the purpose of harassing or maliciously injuring a person

Question 6

expediting litigation

Answer 6

ABA: reasonable efforts to expedite
CA: no undue delay

Question 7

preserving impartiality and decorum

Answer 7

no improper influence
no contact w/ jurors during proceeding (after - can interview unless juror makes it known they don’t want to, you harass, or prohibited by law)

Question 8

chicanery at trial

Answer 8

lawyer cant
- assert personal knowledge of facts
- refer to inadmissible material
- state personal opinion about case/innocence/etc (CA: only applies to guilt or innocence)

Question 9

opponents access to evidence

Answer 9

• can’t falsify evidence or assist in perjury
• can’t unlawfully obstruct another party’s access to evidence / conceal document having evidentiary value
  CA: includes suppressing evidence when obligation to produce, or advising a person to hide or flee jx to make them unavailable

Question 10

advising person not to give info

Answer 10

can only do this if:
- person is client/agent
- lawyer reasonably believes that the person’s interest will not be harmed by not volunteering the information

no equivalent rule in CA

Question 11

paying witnesses

Answer 11

must not offer an inducement that’s prohibited by law; paying generally improper unless related to travel, loss of time, reasonable fees

payment can’t be contingent

Question 12

discovery requests

Answer 12

can’t make frivolous requests or fail to make reasonable efforts to comply w/ requests from adversary

Question 13

violating court rule or order

Answer 13

must not but may openly refuse to obey for purpose of making a good faith challenge to its validity

Question 14

special duties of prosecutors - own case

Answer 14

1. refrain from charging w/o PC
2. reasonable efforts to make sure accused gets RTC
3. can’t seek to get waiver of important pretrial rights (e.g., preliminary hearing of unrepresented accused)
4. make timely disclosure of all evidence known that tends to negate guilt
5. don’t subpoena a lawyer to present evidence about client unless prosecutor believes that info is not privileged, evidence is essential, and there is no feasible alternative

Question 15

special duties of prosecutors - any case

Answer 15

must disclose new, credible, and material evidence to appropriate court authority
- in own jx -> must promptly disclose to D and make reasonable efforts to cause an investigation
- if clear and convincing evidence that convicted D is innocent, must remedy conviction

Question 16

trial publicity rules

Answer 16

Can’t make extrajudicial statement that lawyer reasonably knows will be publicly disseminated and will have a substantial likelihood of prejudicing the case

right to reply - permitted to make a public statement that a reasonable lawyer would believe is required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or lawyer’s client