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)
