Litigation and Advocacy Flashcards
What is a claim with merit?
A claim that has legal or factual basis
What is a frivolous claim
When the lawyer is unable to make a good faith argument on the merits of the case.
Standard duty for speediness of litigation
A lawyer has to make REASONABLE EFFORTS to expedite litigation. Breached is there is no SUBSTANTIAL PURPOSE behind the litigation tactic.
Candor to the tribunal rule- lawyer must not
Lawyer must not knowingly; make a false statement; fail to correct false statement; offer evidence if the lawyer knows the evidence is false;
Duty to disclose adverse legal authority- three elements
Lawyer has AFFIRIMATIVE duty to disclose any legal authority that is controlling in the jx; if the lawyer knows the authority to be directly adverse; and the authority has not been disclosed by opposing counsel.
Remedies if attorney unknowingly makes false statement
Discuss with client and seek clients cooporation; withdraw rep if neces; disclose to the tribunal
Attorneys duty when they know client plans to engage in client or fraud conduct
Must take reasonable measures to remedy the clients conduct including to disclosure to tribunal.
Trial publicity
Some statements are permissible and others are not.
Prohibited extrajudicial statements
If it prejudices the proceedings
Permissible extrajudicial statements
The claim, the investigation; the schedule; warnings
CAn a lawyer be a witness
Not as an advocate on behalf of a client.
Exceptions to lawyer as witness
Uncontested issues, the testimony relates to the nature or value of legal services; disqualification of the lawyer would be substantial hardship
CAn lawyers from the same firm represent a client while the other is a witness
yes
CAn lawyers refer and give advice on things outside of legal rep?
Yes. If it is relevant such as political, economic factors
Who does attorney client privilege apply to when it is general counsel at a corp.
All employees when who provide factual statements necessary for legal advice
can you speak with a juror or perspective juror after a trial question mark
no an attorney must not talk with a juror after a trial when the following are met 1 the juror perspective juror tells the attorney they do not wish to talk or two there is duress or coercion to talk
EXCEPTION to rule banning contingency fees in domestic cases
WHen obtaining past due money in a settlement
