Litigation and Other Forms of Advocacy Flashcards
What is the rule on frivolous claims and contentions?
Rule (ABA Model Rule 3.1): A lawyer must not bring or defend a proceeding, or assert or controvert an issue, unless there is a non-frivolous basis in law and fact for doing so.
- Frivolous means a claim has no basis in existing law or fact and no good faith argument for extending, modifying, or reversing the law.
- Even if a claim seems weak, it is not frivolous if a good faith argument supports it or evidence may arise during discovery.
Example: A lawyer files a claim challenging a statute, knowing precedent is against them, but presents a novel constitutional theory. Not frivolous if made in good faith.
What is allowed in defending criminal charges?
Rule: A lawyer may defend a criminal case by requiring the prosecution to prove each element of the crime, even if the lawyer knows the client is guilty.
- Asserting the government must prove guilt beyond a reasonable doubt is not frivolous.
Example: A lawyer may cross-examine witnesses and test prosecution evidence even if the client admitted guilt privately.
What is the duty to expedite litigation?
Rule (Rule 3.2): A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
- Delay tactics are improper if used to frustrate the opposing party or gain unfair advantage.
- Legitimate reasons like strategy, settlement talks, or client unavailability may justify some delay.
Example: A lawyer delaying proceedings because they’re busy on other matters breaches the rule.
What is the duty of candor to the tribunal?
Rule (Rule 3.3): A lawyer must not knowingly:
1. Make false statements of fact or law, 2. Fail to correct prior false statements, 3. Fail to disclose legal authority in the jurisdiction that is directly adverse and not disclosed by opposing counsel, 4. Offer evidence the lawyer knows to be false.
Is there a duty to disclose adverse facts?
Rule: No general duty—except in ex parte proceedings, where full disclosure is required.
- Adverse facts need not be disclosed unless omitting them would mislead the tribunal.
Example: In a one-sided emergency order hearing, the lawyer must disclose all facts, even harmful ones.**
What must a lawyer do upon learning they offered false evidence?
Rule: The lawyer must take reasonable remedial measures, including:
1. Urging the client to correct the falsehood,
2. Withdrawing if possible,
3. Disclosing to the tribunal—even if it breaches confidentiality.
This duty continues until the end of the proceeding.
What if a criminal defendant insists on testifying falsely?
Rule: Same as above: dissuade, withdraw, disclose.
Minority rule: Allow narrative testimony without guiding it. Still avoid arguing or relying on falsehoods.
Example: If a defendant insists they were not at the scene (but the lawyer knows otherwise), the lawyer must attempt to prevent false testimony and take corrective steps.
What is the duty to prevent criminal or fraudulent conduct affecting a proceeding?
Rule: A lawyer must not assist or permit others (e.g., clients or third parties) to commit crimes or frauds that corrupt the legal process.
Includes: Suborning perjury, destroying evidence, coaching false testimony, etc.
What conduct violates the rule of fairness to opposing parties and counsel?
Rule (Rule 3.4): A lawyer must not:
- Obstruct access to evidence or alter/destroy it,
- Falsify evidence,
- Counsel or assist a witness to testify falsely,
- Disobey court orders,
- Make frivolous discovery requests or fail to comply with discovery obligations,
- Allude to irrelevant matters during trial.
Example: Instructing a client to delete emails relevant to litigation is obstruction.
When and how can a lawyer compensate witnesses?
Rule: A lawyer may:
- Pay for travel and other reasonable expenses,
- Compensate for lost time (reasonable expenses)
- Pay a reasonable fee to expert witnesses, BUT NOT based on success of the case or testimony content.
Example: Paying a lay witness to say something specific is prohibited.
Can a lawyer tell a witness not to talk to the other side?
Rule: Only if the witness is:
- The lawyer’s client, or
- A relative, employee, or agent of the client, and
- No harm is done by the non-cooperation.
Can lawyers prepare witnesses?
Rule: Yes. Lawyers can:
- Help witnesses review facts,
- Practice answering questions,
- Ensure accurate, truthful testimony.
NOT allowed: Encouraging false testimony or coaching to mislead.
[See ABA Formal Opinion 508 (2023)]
What if a lawyer violates a court order?
Rule: A lawyer must comply with rules and orders—unless making a good faith challenge (e.g., seeking appeal or writ).
Example: Ignoring a discovery deadline without court permission is unethical.
What is trial chicanery?
Rule: A lawyer must not:
- Mention inadmissible or irrelevant evidence before a jury,
- Assert personal knowledge unless testifying,
- Express personal opinions about guilt, credibility, or justice.
Example: “I think the defendant is a liar” is prohibited.
Can a lawyer threaten disciplinary action during negotiations?
Rule: No. Threatening to file a grievance to gain leverage in a civil or business dispute is unethical. If you need to report misconduct, do it—don’t use it as a threat
What is the duty to preserve tribunal impartiality?
Rule (Rule 3.5): Lawyers must not:
- Try to improperly influence judges or jurors,
- Offer gifts or favors,
- Communicate ex parte unless authorized.
Example: Offering sports tickets to a judge is a serious ethical breach.
When is ex parte communication allowed?
Rule: Only if:
- Authorized by law or court order,
- Procedural fairness is maintained,
- Opposing parties receive notice of written communications.
Example: Seeking an emergency TRO without notifying opposing party must be truthful and complete.
Can a lawyer investigate jurors or potential jurors?
Rule: Yes, but must be limited to publicly available info.
- No direct or indirect contact (e.g., sending friend requests on social media).
Violation: Messaging a juror or “liking” their posts is unethical.
Can a lawyer contact jurors after a trial?
Rule: Only if:
- Not prohibited by law or court order,
- The juror consents,
- The communication is not misleading, harassing, or disruptive.
What conduct is considered disruptive in court?
Rule: Lawyers must act with respect and decorum. Prohibited conduct includes:
- Shouting or making a scene,
- Disrespectful language,
- Disruptive behavior in depositions.
What limits apply to lawyers’ public statements about pending matters?
- Rule (Rule 3.6): Lawyers must avoid public statements that pose a substantial likelihood of materially prejudicing the proceeding.
- Permitted: Basic facts (e.g., charges, court dates, procedural status).
- Not allowed: Statements about confessions, test results, or credibility of witnesses.
What additional duty applies to prosecutors?
Rule (Rule 3.8(f)): Prosecutors must avoid comments that could heighten public condemnation of the accused. Higher ethical standard due to their role.
When can a lawyer respond to negative publicity?
Rule: If negative publicity threatens unfair prejudice to a client, the lawyer may make a limited, proportionate public response to mitigate harm.
Can a trial lawyer also be a witness in the case?
Rule (Rule 3.7): A lawyer cannot serve as trial counsel and a witness unless:
- Testimony relates to uncontested matters,
- Testimony relates to legal services performed,
- Withdrawal would impose substantial hardship on the client.
- Other lawyers in the firm may still act as advocates unless their involvement creates a conflict of interest.
