LAWYER'S DUTY TO COURTS Flashcards
rules // LAWYER’S DUTY TO COURTS
o R.1.12 FORMER JUDGE, ARBITRATOR, MEDIATOR, OR OTHER THIRD-PARTY NEUTRAL
o R.3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
o R.3.1 MERITORIOUS CLAIMS AND CONTENTIONS
o FRCP.11
o R.3.3 CANDOR TOWARD THE TRIBUNAL
o R.3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
o R.3.6 TRIAL PUBLICITY
o R.3.7 LAWYER AS WITNESS
o R.3.9 ADVOCATE IN NONADJUDICATIVE PROCEEDINGS
o R.4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS
o R.4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
o R.4.3 DEALING WITH UNREPRESENTED PERSON
o R.4.4 RESPECT FOR RIGHTS OF THIRD PERSONS
Application // DUTY OF CANDOR TO THE TRIBUNAL
- Duty applies during all stages of proceeding (CMT 1)
- Compare with R.8.4(c)’s broader ban on deceit and misrepresentation
- R.3.3 has different coverage
Duty to disclose adverse authority // DUTY OF CANDOR TO THE TRIBUNAL
- Duty of candor to tribunal includes duty to disclose adverse authority under R.3.3(a)(2)
- 4 elements to trigger duty
1. legal authority in controlling jurisdiction
2. known to lawyer
3. to be directly adverse to client’s position
4. and not disclosed by opposing counsel
= gotta disclose dat authority to tribunal kiddo
Other duties included in // DUTY OF CANDOR TO THE TRIBUNAL
- duty to disclose adverse authority under R.3.3(a)(2)
- duty to prevent criminal or fraudulent conduct in connection with a case before a tribunal and take reasonable remedial measures under R.3.3(b)
- duty to correct record overrides duty of confident under R.3.3(c)
- duty to disclose in ex parte proceedings under R.3.3(d)
- duty not to offer false evidence under R.3.3(a)(3)
example // R.3.3(d) DUTY TO DISCLOSE IN EX PARTE PROCEEDINGS
Classic example = temporary restraining order
rule // R.3.3(d) DUTY TO DISCLOSE IN EX PARTE PROCEEDINGS
= lawyer must disclose all material facts, including ones adverse to client
- judge has an affirmative responsibility to accord the absent party just consideration
- lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer AND that the lawyer reasonably believes are necessary to an informed decision
(object of an ex parte proceeding = to yield a substantially just result despite the lack of balance of presentation by opposing advocates)
CMT 14, R.3.3(d)
Application in civil case // R.3.3(a)(3) duty not to offer false evidence
- Knows evidence is false = shall not offer it
- Reasonably suspect but don’t know if evidence is false = may or may not offer
Witness intends to offer false testimony in civil case // R.3.3(a)(3) duty not to offer false evidence
Know that witness intends to offer false testimony or wants lawyer to introduce false evidence, lawyer should seek to persuade client that evidence shouldn’t be offered
- if persuasion is ineffective and lawyer continues representation, lawyer must refuse to offer false evidence
- if only portion of witness’s testimony will be false, lawyer may call witness to testify BUT may not elicit or otherwise permit testimony lawyer knows is false
CMT 6, R.3.3(a)(3)
Knowledge v. reasonable belief in civil case // R.3.3(a)(3) duty not to offer false evidence
- knowledge can be inferred but must be actual
- although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.
Application in criminal case // R.3.3(a)(3) duty not to offer false evidence
- Know it’s false = shall not offer it
- Reasonably believes false = must allow D to testify
Later discover offered evidence is false in criminal case // R.3.3(a)(3) duty not to offer false evidence
= those remedial measures though
FIRST
- advocate’s proper course is to remonstrate with the client confidentially
- advise the client of the lawyer’s duty of candor to the tribunal
- seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence
IF THAT FAILS, advocate must take further remedial action
- If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6.
(then it’s for tribunal to determine what to do–telling jury, ordering mistrial, or nothing)
NIX v. WHITESIDE (1986) // LAWYER’S DUTY TO THE COURTS
holding = no ineffective assistance of counsel (6th amendment) when counsel informs a D that he must disclose perjury to the court because an attorney cannot allow a client to give false testimony
Analysis // FALSE IMPRESSIONS
False impressions created by lawyers during litigation = analyzed under R.3.4 fairness to opposing party and counsel
Summary of 5 key guidelines // FALSE IMPRESSIONS
- if a client tells lawyer about location of evidence, lawyer may inspect evidence but should not disturb it or move it unless doing so is necessary to examine or test the evidence
- if lawyer merely inspects evidence without disturbing it, lawyer’s knowledge of location remains privileged
- applicable law may require lawyer to turn evidence over to police or other prosecuting authority
- if client delivers physical evidence of crime to lawyer, lawyer may examine and test but must turn it over to law enforcement within reasonable time
- the rule applies to documents as it does tot other physical evidence
R.3.4(a) and (d) apply in criminal cases
Lawyers’ duties of truthfulness in witness preparation to testify // LAWYER’S DUTY TO THE COURTS
= Cannot counsel to testify falsely or falsify evidence
R.3.7’s 2 general rules // R.3.7 LAWYER AS A WITNESS
- Generally can’t be advocate in proceeding where likely to be necessary witness under R.3.7(a)
- R.3.7(b) = can act as advocate in trial where another lawyer in the firm is likely to be called as witness UNLESS prohibited by R.1.7 or R.1.9 (CMT 7)
R.3.7’s 3 exceptions // R.3.7 LAWYER AS A WITNESS
can be advocate in proceeding where likely to be necessary witness when
- Uncontested issue = testimony related to uncontested issue
- Nature/value of legal services = testimony relates to nature and value of legal services
- Substantial hardship from disqualification
General rule // R.3.6 TRIAL PUBLICITY
Can’t make extrajudicial statement lawyer know or reasonably should know will be publicly disseminated and will have substantial likelihood of materially prejudicing an adjudicative proceeding in which lawyer’s participating under R.3.6(a)
Likely to be materially prejudicial // R.3.6 TRIAL PUBLICITY
Subjects more likely than not to be materially prejudicial =
- character/credibility/reputation/criminal record of
- party/suspect in a CRIMINAL investigation
- witness - expected TESTIMONY of party/witness
- in CRIMINAL case (that could = jail)
- possibility of guilty PLEA
- existence/contents of any suspect’s STATEMENT or refusal/failure to make statement - performance/results of OR refusal to submit to any TEST
- identity/nature of PHYSICAL EVIDENCE expected 2b presented
- any opinion as to the GUILTY/INNOCENCE of D/suspect in proceeding that = JAIL
- info lawyer knows/reasonably should know likely to be INADMISSIBLE and that would, if disclosed, create a SUBSTANTIAL RISK OF PREJ
- fact that D has been CHARGED with a crime, UNLESS there is included therein a statement explaining that the charge is merely an accusation and that D is presumed innocent until and unless proven guilty
Probably not materially prejudicial // R.3.6 TRIAL PUBLICITY
R.3.6(b) = nonexhaustive list of matters in which statement probably not prejudicial
- claim/offense/defense involved
- identity of persons involved, except when prohibition by law
- info contained in public record
- that investigation of a matter is in progress
- scheduling or result of any step in litigation
- request for assistance in obtaining evidence/info necessary thereto
- warning of danger concerning the behavior of person involved WHEN there is reason to believe that there exists the likelihood of substantial harm to an individual or to public interest
- in criminal case, also can say =
a. identity/resident/occupation/family status of accused,
b. info necessary to aid in apprehension if not yet caught,
c. fact/time/place of arrest,
d. identity of investigating/arresting officers/agencies and length of investigation
Responding to allegations // R.3.6 TRIAL PUBLICITY
R.3.6(c) = allows statement to address recent publicity initiated by others to protect client from substantial undue prejudice
Frivolous claims/defenses // LAWYER’S DUTY TO THE TRIBUNAL
- a lawyer shall not file frivolous claims or defenses (i.e., those not well-grounded in law or fact or those asserted for delay, harassment, etc.)
- a good faith argument for reversal or modification of the law is not frivolous
- this means objective good faith (Would a reasonable lawyer believe it is well-grounded in law and fact?)
- a criminal defense lawyer may require the prosecution to prove all elements of its case even if the defendant has no valid defense
- frivolous pleadings also violate FRCP 11 and thus subject a lawyer and the lawyer’s firm to litigation sanctions (usually monetary sanctions)
- if a lawyer believes from the outset that a client’s motive is harassment or that the client’s claims are frivolous, the lawyer must decline the representation
safe harbor // LAWYER’S DUTY TO THE TRIBUNAL
a lawyer may avoid sanctions under FRCP 11, if the lawyer within 21 days of being served with a motion for FRCP 11 sanctions, withdraws or amends (so as to comply with FRCP 11) the pleading
delay the proceedings // LAWYER’S DUTY TO THE TRIBUNAL
- a lawyer may delay proceedings only if he or she has a legitimate purpose
- EXAMPLE illegitimate purposes = “my client will gain financially from a delay,” “we can out wait our opponent,” “everyone does it,” and “the courts don’t seem to care”
- EXAMPLE legitimate reasons = more evidence is needed; an essential witness is out of town
