Lawyer's Duties to Courts

Question 1

Meritorious Claims and Contentions- 3.1

Answer 1

Lawyers should not bring frivolous claims unless there is a basis in law or fact.

A lawyer for a criminal defendant may nevertheless do so as to require that every element of the case be established.

Frivolous claim= facts must be fully substantiated before suits is filed.

Question 2

FCRP 11

Answer 2

Very similar to Rule 3.1, except Rule 11 will not result in disciplinary action against the attorney, and Rule 11 provides a safe harbor to withdraw frivolous claims.

Question 3

Sanctions under Rule 11

Answer 3

Plaintiff must prove:

1. that she won the previous suit in which she was a defendant
2. that the prior suti was brought without probable cause
3. the at the prior suit was brought with malice
4. that the plaintiff was injured despite having won the prior suit.

Question 4

Candor toward Tribunal 3.3 (a)(1)

Answer 4

bars false statements to courts by lawyers themselves, as opposed to false testimony by clients or witnesses. If L discovers that she has made a false statement, L must correct it.

Question 5

3.3(a)(2)

Answer 5

Requires more than avoiding falsehood. Lawyers must affirmatively disclose directly adverse law in the controlling jurisdiction if the opponent doesn’t do so.

Question 6

3.3(a)(3)

Answer 6

A lawyer must not offer evidence in court, including testimony from his client or other witness, that the lawyer knows is false.

If witness does lie, the lawyer must call on the witness to correct the testimony and if he won’t, the lawyer must disclose lie to the court

If a lawyer REASONABLY BELIEVES but it not certain, the lawyer MAY refuse to offer the evidence, except in criminal cases….MUST allow defendant to defend themselves.

Question 7

3.3(b)

Answer 7

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including disclosing to the tribunal if necessary.

Question 8

3.3 Notes

Answer 8

Only applies during the proeceding. Not before and not after.

It may require the lawyer to disclose confidences ordinarily protected by 1.6.

Question 9

8.4- Misconduct

Answer 9

All conduct by lawyers, including conduct before tribunals bans deceit, misrepresentation, dishonesty, fraud.

Question 10

Nix v. Whitesie

Answer 10

Supreme Court determined a lawyer’s duties do not extend to supporting their client who will lie in front of tribual. Representation is limited to legitimate, lawful conduct.

State laws govern whether a Lawyer must disclose perjury to the court.

Question 11

Legal Trilemma

Answer 11

We have a duty to investigate (3.1, 1.1), a duty of confideentiality (1.6), and a duty not to present false evidence (3.3). The duties conflict. The more a lawyer knows the more of a bind the lawyer is in.

Monroe wanted to get rid of the duty not to present false evidence. MR disagrees.

Question 12

Duty to disclose adverse legal authority- 3.3(a)(2)

Answer 12

Unless a disclosure or discovery rule applies, or a lawyer is required to remedy false testimony or some other ethical breach, a lawyer representing a client in litigation need not inform an adversary of adverse facts. However, a lawyer must disclose relevant legal authority even if it is directly adverse to client’s position.

“must not KNOWINGLY fail to reveal directly adverse authority”

Question 13

Exceptions to disclosing Adverse legal authority

Answer 13

• adverse law is from another jurisdiction..only CONTROLLING jurisdiction matters
• Only authority that is DIRECTLY ADVERSE
• Persuasive authorities need not be disclosed

Question 14

Disclosure in ex-parte proceedings- 3.3(d)

Answer 14

a lawyer must inform the court of all MATERIAL facts KNOWN to the lawyer that will enable the court to make an informed decision, whether or not the facts are adverse.

Info protected by attorney-client privilege or the work product doctrine does not apply.

Question 15

Improper Influences on judges and juries=3.5

Answer 15

A lawyer shall not:

a. seek to influence a judge, juror or prospective juror by means prohibited by law;
b. communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order

c. communicate after discharge if:
1. prohibited by law
2. juror has made known to L a desire not to communicate
3. the communication involves misrepresentation, coercion, duress, or harassment

d. engage in conduct intended to disrupt a tribunal

Question 16

Ex parte communication to judge- 3.5(b)

Answer 16

L must not communicate with a judge about a pending case, orally or in writing, unless the lawyers for all parties are privy to the communication.

Question 17

Agreements not to accept further cases- 5.6(b)

Answer 17

A lawyer shall not participate in offering or making an agreement in which a restriction on a lawyer’s right to pratice is part of the settlement of a client controversey.

Question 18

Rule 3.6 governs _________?

Answer 18

Pretrial publicity for lawyers

Question 19

What may a lawyer disclose to the press?

Answer 19

1. the claim, ofense or defense involved;
2. information that is in public reords
3. that an investigation is in progress
4. the scheduling or result of any step in litigation
5. a request for assistance in obtaining evidence
6. a warning of danger when there is a reason to believe that there exists likelihood of substantial harm to an individual or to the public interest.
7. in a criminal case

Question 20

Rule 3.6 (a) prohibits lawyers from?

Answer 20

making extrajudicial statements that the lawyer knows or reasonably should know ….will have a substantial likelihood of materailly prejudicing a proceeding in the amtter.

Question 21

Rule 3.6(c) permits a lawyer to____________

Answer 21

make a stateement that a “reasonable lawyer would believe is required to prtect a client from the substantial undue prejudicial effect of recent publicity.

Question 22

3.6(d) prohibits?

Answer 22

Lawyers in the same firm from making a statement prohibited by 3.6(a).

Question 23

3.7 governs what issues?

Answer 23

Lawyers as a witness

Question 24

3.7(a) prohibits lawyer from?

Answer 24

Acting as an advocate at a trial in which the lawyer is likely to be a necessary witness.

Question 25

What are the three exceptions to 3.7(a)?

Answer 25

1. the testimony relates to an uncontested issue
2. the testimoney relates to the nature and value of legal services
3. Disqualification of the lawyer would put substantial hardship on the client.

Question 26

May lawyers in the same firm testify as a witness?

Answer 26

Yes, unless precluded by Rule 1.7 or 1.9.

Question 27

May a lawyer assert personal knowledge of facts or personal opinion?

Answer 27

No. A lawyer shall not allude to any matter that the lawyer does not reasonably beliee is relevant

OR that will not be supported by evidence

OR assert personal knowledge of facts

OR state a personal opinion on the credibility of the witness, the culpability of a CIVIL litigant or the guilt or innocence of the accused.

Question 28

Rule 4.1: Turthfulness in Statements to Others

Answer 28

In the course of representting a client L shall not:

(a) make a false statement of MATERIAL FACT or law to a 3rd person
(b) fail to disclose a MATERIAL FACT when disclosure is neccessary to avoid assisting a criminal or fraulent act by client

Question 29

Rule 4.2: Commuincaton with a Person Represented by Counsel

Answer 29

L shall not communicate with a person an L knows to be represented by another L.

The client cannot waive this- ONLY OPPOSING L CAN WAIVE.