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
sharing fees // LAWYER’S BUSINESS RELATIONSHIP WITH NONLAWYERS
General rule = a lawyer may not share fees with a non-lawyer
Exceptions =
- payment to a deceased lawyer’s estate for reasonable time
- profit-sharing (compensation and retirement) plans for non-lawyer employees of firm
- a lawyer may share court-awarded fees with a nonprofit organization that employed or recommended the lawyer
partnership // LAWYER’S BUSINESS RELATIONSHIP WITH NONLAWYERS
lawyer may not enter into a partnership with a non-lawyer if the partnership will perform any legal practice
(but a lawyer may enter into non-legal business with a non-lawyer)
corporation law practice // LAWYER’S BUSINESS RELATIONSHIP WITH NONLAWYERS
lawyer may not practice law in a corporation or other entity if a non-lawyer owns any interest in the entity (i.e., a shareholder), if a non-lawyer is an officer or director (or a person with similar responsibility) of the entity, or if a non-lawyer has the right to control the professional judgment of a lawyer
EXAMPLE = Wal-Mart could not start a law firm because it has non-lawyer shareholders, officers, directors, and general managers
payment by third-party // LAWYER’S BUSINESS RELATIONSHIP WITH NONLAWYERS
If someone other than a client is paying the attorney’s fees (e.g., auto insurer) OR referring the client (e.g., the client’s parent or employer)
= that person
- may not direct or control the professional judgment of the lawyer AND
- is not entitled to confidential information about the client
5 evidence rules // LAWYER’S DUTY TO OPPOSING COUNSEL
- lawyer shall not unlawfully obstruct another party’s access to evidence
- lawyers generally are obligated to disclose information only if there has been a proper discovery request (except for prosecutors, lawyers have no affirmative duty to disclose information to an opponent)
- a lawyer shall not REQUEST that a person (including a client) leave the jurisdiction to avoid giving evidence
- in addition, a lawyer shall not REQUEST that a person refrain from voluntarily giving evidence to another party EXCEPT when
a. the person is the lawyer’s client OR
b. the person is a relative or employee of the lawyer’s client AND the lawyer believes that the person’s interests will not be adversely affected by such advice (EXAMPLE = it is usually proper for corporate counsel to advice corporate employees not to speak to opposing counsel) - falsify or tamper with evidence or assist another in doing so (also violates FRCP 37 and obstruction of justice statutes)
contempt // LAWYER’S DUTY TO OPPOSING COUNSEL
- usually a sanction of last resort
- 2 types of contempt = civil and criminal
- CIVIL contempt = (fines or imprisonment) imposed to coerce a party or attorney to comply with a court order
- CRIMINAL contempt = a separate criminal proceeding for a past violation of a court order (rarely imposed in a discovery dispute)
- FRCP 11 does NOT apply to discovery
discovery requests // LAWYER’S DUTY TO OPPOSING COUNSEL
- a lawyer shall not make frivolous discovery requests and must act diligently to respond to discovery
- if a lawyer fails to fully comply with a valid discovery request, the lawyer and/or the client and/or the lawyer’s firm may be subject to monetary sanctions under FRCP 37
paying witnesses // LAWYER’S DUTY TO OPPOSING COUNSEL
offer an inducement to a witness to testify EXCEPT
- a lawyer may pay the reasonable travel expenses of lay and expert witnesses
- a lawyer may reimburse a lay witness for lost wages/time expended (i.e., the amount the witness lost by testifying)
- a lawyer may pay an expert’s fee for testifying, but the fee cannot be contingent on the outcome of the case
disobeying court order // LAWYER’S DUTY TO OPPPOSING COUNSEL
lawyer must not knowingly disobey a court order, except for an open refusal that no valid obligation exists
(such conduct may also subject the lawyer to contempt AND lawyer is not obligated under the Rules to be held in contempt for a client)
inflaming the jury // LAWYER’S DUTY TO OPPPOSING COUNSEL
at trial, a lawyer shall not allude to irrelevant or inadmissible information to inflame the jury
EXAMPLES =
- lawyer asserts personal knowledge of facts (unless testifying)
- lawyer states a personal opinion on the justice of a cause or the credibility of a witness (“In my opinion, W is lying”) or the liability of a civil litigant or the guilt or innocence of an accused
