Limitations on Zealous Representation

Question 1

Why do we limit zealous representation?

Answer 1

To promote social interests in efficiency and procedural fairness.

Question 2

In which areas do we limit zealous representation?

Answer 2

(1) Undertaking representation - frivolity
(2) Pretrial conduct
(3) Discovery
(4) ADR
(5) Trial tactics and publicity
(6) Prosecutors’ duties

Question 3

What are attorneys’ key duties in undertaking representation?

Answer 3

(1) No frivolity, 3.1

(2) Expedite consistent with clients’ interests, 3.2

Question 4

What’s the standard for frivolity?

Answer 4

Under FRCP 11. After reasonable inquiry under the circumstances, action is not frivolous if

(1) No improper purpose
(2) Legal contentions warranted
(3) Factual allegations backed by evidence
(4) Denials of facts must be warranted.

Question 5

When is a purpose “improper”?

Answer 5

• Trying to harm or impose costs on the other side

- Coercing into settlement, White v. GM

Question 6

Can a lawyer talk to the other client?

Answer 6

Anti-contact rule, 4.2, prevents communications with (1) a represented party (2) about that matter (3) without their counsel’s consent.

To be prohibited, lawyer must have “actual knowledge” that party is represented, Jorgenson v. Taco Bell.

Question 7

Are there any exceptions to the anti-contact rule?

Answer 7

(1) Communications authorized by law, RST 99
(2) Client v. client contacts, RST 99(2)
(3) Emergency communications, RST 99 cmt. i.

Question 8

Can plaintiff’s counsel speak with the defendant’s employees?

Answer 8

Under Niesig, can’t speak with:

(1) Those who supervise, direct or regularly consult with corporate counsel re: matter;
(2) Those with authority to obligate the org. in matter; or
(3) Those whose act/omission in matter may be attributed to organization for liability.

Question 9

May counsel speak with the other side’s former employees?

Answer 9

Generally OK, unless

(1) “Extensively exposed” to CI, Camden v. Md.
(2) Continues to consult with corp. counsel, RST 102

Question 10

What types of discovery abuse are common?

Answer 10

(1) Unnecessarily broad discovery requests

(2) Withholding info other side is entitled to

Question 11

What are the general rules of discovery?

Answer 11

• Be fair to other side, 3.4
• No misconduct: frivolous requests or failures to reply, 3.4d
• No improper means, 4.4

Question 12

How can a lawyer guilty of discovery abuse be punished?

Answer 12

• Fines
• Liberal cross of witnesses
• Striking affirmative defenses
• Exclusion of evidence
• DQ
• Dismissal
• Tort liability

Question 13

What are the basic duties in responding to discovery requests?

Answer 13

• Reply to each interrogatory, FRPC 33b3
• State grounds for objection, 33b4
• If claiming privilege, log it, FRCp 26b5
• Can’t hide smoking guns, WA Physicians Case

Question 14

What should you do if you were inadvertently sent something confidential?

Answer 14

Promptly notify the sender, 4.4b. Don’t read it, Rico v. Mitsubishi.

Question 15

Does inadvertent disclosure waive privilege?

Answer 15

Apply the Elkton factors:

• Reasonableness of precautions taken
• Extent of disclosure
• Delay / measures taken to rectify disclosure
• Overriding interests of justice

Question 16

If you inadvertently sent something in federal court, what should you do?

Answer 16

(1) Notify recipient of claim and basis of privilege

(2) Recipient should promptly return, sequester or destroy. May present to court for determination of claim, 26b5.

Question 17

What happens if, in federal court, inadvertent sender fails to notify the recipient?

Answer 17

Negates “reasonable steps to recover” under FRE 502, so probably no privilege.

Question 18

What duty binds lawyers in negotiations?

Answer 18

Honesty, 4.1: no knowingly (1) false statements of material fact/law or (2) failures to disclose a material fact if necessary to avoid helping client’s crime/fraud.

Question 19

When does NC think a duty to disclose applies in settlement negotiations?

Answer 19

(1) Corrective disclosures, RST 98
(2) Scrivener’s error, Stare v. Tate
(3) Fiduciary duty, e.g. unrepresented party
(4) Good faith and fair dealing, e.g. mistake re: basic facts of deal.

Question 20

What can you do if the other side is talking shit in the media?

Answer 20

Reply to extent reasonably necessary to protect client from prejudicial effect of publicity not initiated by lawyer/client, limited to mitigating, 3.6c; Gentile.

Question 21

Can a lawyer say whatever they want about a pending case, outside of the courtroom?

Answer 21

No. Can’t say anything with a “substantial likelihood” of “materially prejudicing” the proceeding, 3.6a.

Question 22

What can a lawyer always state about a pending case?

Answer 22

Safe harbors, 3.6b, allow:

(1) Claims / defenses / parties’ identities
(2) Anything in public record
(3) Investigation underway
(4) Scheduling / result of any step in litigation
(5) Request for assistance re: evidence
(6) Danger warnings of dangerous persons
(7) Criminal stuff

Question 23

What can a lawyer never say about a pending case?

Answer 23

Sure shipwrecks, 3.6 cmt. 5:

(1) Character etc. of a party or witness; witness identity
(2) Criminal: contents of a statement etc. by defendant or suspect, or refusal to make one
(3) Performance on any test
(4) Personal opinion re: guilt / innocence
(5) Anything “likely to be inadmissible” as evidence
(6) Fact that defendant has been charged with a crime, unless merely an accusation + presumed innocent.

Question 24

What kinds of trial tactics are prohibited?

Answer 24

• Improper contacts with jurors

- Improper jury selection

Question 25

Do lawyers have any general disclosure obligations at trial?

Answer 25

• Adverse, controlling law undiscovered by other side, 3.3a2
• Juror misconduct, 3.3b
• In withdrawals from criminal appeals, stuff re: why appeal has merit.

Question 26

At trial, how should lawyers deal with documents?

Answer 26

• Illegal to destroy / falsify evidence, 3.4a

Question 27

At trial, are lawyers restricted in examining witnesses?

Answer 27

• Can’t interfere with other side’s access to witness, RST 116(2)
• Can’t ask witness to refrain from other side (but exceptions), 3.4f
• May cross a truthful witness, 4.4a

Question 28

Are trial arguments limited at all?

Answer 28

• None based on inadmissible evidence, 3.4c
• No personal opinions re: merits, 3.4e
• May knowingly argue for false inference reasonably supported by evidence, US v. Latimer

Question 29

What disclosure obligations do prosecutors have?

Answer 29

• Adverse legal authority, 3.3a2

- Exculpatory material, Brady v. Maryland

Question 30

Do prosecutors have unlimited discretion?

Answer 30

• Must have probable cause to present charges, 3.8a

- Limited discretion to charge after appeal, Blackledge v. Perry (prosecutorial vindictiveness)

Question 31

Does the anti-contact rule apply to prosecutors?

Answer 31

States have regulatory power, so it depends. Meaning of “authorized by law” exception to 4.2 varies - see facts-and-circumstances approach of Talao:

• Has adversarial posture developed?
• Did informant or gov’t initiate?
• Involve evidence of perjury / obstruction?
• Counsel conflicted?
• Gov’t give warning re: right to other counsel?
• Gov’t misconduct?

Question 32

What should a prosecutor do if an innocent has been convicted?

Answer 32

• Reasonable likelihood of wrongful: must take action regardless of JX, 3.8g
• Clear and convincing in home JX: take action 3.8h

Question 33

How should you interview an employee?

Answer 33

1. Identify yourself, client and purpose of interview
2. Inquire into whether represented by counsel
3. Clarify that you seek info and can’t advise (get atty)
4. Don’t inquire into comms. with corp. counsel
5. No harassment
6. Provide written statement of above
7. Draft written summary of interview

Question 34

What are the basic responsibilities in propounding discovery ?

Answer 34

1. Obey tribunal’s rules, 3.4d
2. Signature certifies compliance with rules, FRCP 26g1b
3. No more than 25 discrete interrogatories, FRCP 33a