LAWYERS’ DUTIES TO ADVERSARIES & THIRD PERSONS Flashcards
Rules // LAWYER’S DUTIES TO ADVERSARIES & THIRD PERSONS
o R.3.6 TRIAL PUBLICICTY
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
Overview of duty // R.4.1(A) TRUTHFULNESS IN STATEMENTS TO OTHERS
- Rules impose a duty of candor to 3P
- More limited duty than duty of candor to tribunal under R.3.3(a)
Application // R.4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS
- Applies to
1. Statements made to opposing counsel
2. Statements made to witnesses - Applies whenever dealing with others on client’s behalf (CMT 1)
- Applies to statements of fact
negotiation // R.4. TRUTHFULNESS IN STATEMENTS TO OTHERS
- rules allow for some puffery
- CMT 2 for limitation/explanation
Rule // R.4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
- SEE CMT 3, copy applications of rule from bullets pg. 703-04
- Can’t communicate without anyone who has representation
- As soon as you find out, must terminate communication
Organizations/corporations // R.4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
- forbids lawyer from contacting 3 categories of employees (CMT 7)
- SEE PG. 707 for categories
- Can communicate with former employees (unless represented by the same counsel expressly)
Compare to attorney-client privilege // R.4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
SEE PG. 707 chart
Rule // R.4.3 DEALING WITH UNREPRESENTED PERSON
- Only advice you can give unrepresented person is to get a lawyer
- Can’t imply or tell them you’re disinterested if acting on behalf of client
- After explaining representation to adverse party and no the unrepresented person, may inform person of terms of agreement of settlement and prepare docs for signature (CMT 2)
Misunderstanding lawyer’s role // R.4.3 DEALING WITH UNREPRESENTED PERSON
- If unrepresented person misunderstands your role, must make reasonable efforts to correct misunderstanding
- Usually by identifying your client, when necessary, explain client has interest opposed to those of unrepresented person (CMT 1)
?! // R.4.4 RESPECT FOR RIGHTS OF THIRD PERSONS
- SEE PG. 700-02
- R.4.4(b) = must tell opposing counsel if receive inadvertently sent information
2 truthfulness rules // LAWYER’S DUTY TO THIRD-PARTIES
- a lawyer shall not knowingly make false statements of fact or law to third parties
- EXCEPTION = puffing in negotiations (“My client’s land is worth twice that amount” or “My client cannot accept any settlement below $1 million”) - a lawyer must disclose relevant facts necessary to avoid assisting a client in fraud or a crime, unless such information is protected by Rule 1.6 (which is often the case)
- if the information is protected by Rule 1.6 and the client insists that lawyer not disclose a fact even though substantive law requires disclosure, the lawyer should resign (and the lawyer may be allowed to reveal the information if it fits within one of the exceptions to R.6)
- TIP = a lawyer generally is not required to disclose facts adverse to the lawyer’s client (e.g., defendant’s lawyer is not obligated to voluntarily inform court that defendant has prior convictions)
general rule // COMMUNICATING WITH REPRESENTING PERSONS
lawyer may not communicate with a represented person about the subject of the representation, unless authorized to do so by law or court order (this rule applies even though the communications are initiated by the represented person)
application // COMMUNICATING WITH REPRESENTING PERSONS
- The rule includes all persons represented by counsel, not just adverse parties, and the officers, managers, and employees (whose actions or statements may be imputed to the entity) of a represented corporation or other entity
- The rule applies only to persons the lawyer knows or should know are represented
- The rule applies only to communications related to the subject of the representation
exceptions // COMMUNICATING WITH REPRESENTING PERSONS
- person’s counsel consents (never happens)
- client-to-client communications are fine
- communication does not relate to subject of representation (e.g., lawyer is suing IRS for client; lawyer may still contact IRS about her own tax returns)
6 rules // COMMUNICATING WITH REPRESENTING PERSONS
- lawyer must not state or imply that he or she is disinterested (e.g., “I don’t care who wins; I only want to find out the truth”)
- lawyer must not fail to correct a person’s misunderstanding of the lawyer’s role if the lawyer knows or should know of the misunderstanding
- lawyer must make clear that he or she is not disinterested and that he or she is not the lawyer of the unrepresented party
- only advice the lawyer may give the unrepresented person is to obtain counsel (no other legal advice may be given to unrepresented persons)
- lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violates the third person’s legal rights (e.g., lawyer bugs witness’s home; lawyer threatens witness).
- a lawyer who receives a document from a third party by mistake (e.g., an opposing attorney inadvertently faxes a privileged document) must promptly notify the sender