Litigation and other forms of advocacy

Question 1

Impartiality, civility, courtesy, and decorum

Answer 1

L must not disrupt a tribunal, must present evidence and argument so C’s cause is decided according to the law, and must not improperly influence a judge or juror

Question 2

Conduct in the course of litigation

Answer 2

1. Duty to avoid frivolous claims
   • MR—L cannot bring claims unless there is a basis in law and fact for doing so that is not frivolous (a good-faith argument for change in existing law is not frivolous)
   • CA—L cannot seek or continue employment if L knows or should know that a claim is not warranted under existing law (unless it can be supported by a good-faith argument for a change in existing law)
2. Duty to expedite litigation—L must make reasonable efforts to expedite litigation consistent with the interests of C (course of action must be for a substantial purpose other than delay)
3. Duty of candor to the tribunal—L must not knowingly make (and must correct) false statements of law or fact, but L is not under a duty to reveal unfavorable facts unless doing so is necessary to avoid assisting C in a criminal/fraudulent act
4. Duty of fairness to opposing party/counsel
   • Access to evidence—(MR) L must not unlawfully obstruct another party’s access to evidence or suppress/destroy material having potential evidentiary value, or evidence that L has legal obligation to produce (CA)
   • Inducement to witnesses—L can pay non-expert witnesses reasonable compensation for loss of time and travel expenses and can pay expert witnesses a reasonable fee for professional services and travel expenses

Question 3

Client fraud and perjury by a client or witness

Answer 3

MR—L prohibited from knowingly (actual knowledge) offering false evidence and may refuse to admit evidence that L reasonably believes is false
CA—L must only employ those means consistent with the truth, and never seek to mislead the judge by artifice or a false statement of fact/law

Learning of false material evidence after it’s offered (MR)—L must take reasonable remedial measures (not addressed in CA)

Criminal D
• MR—L prohibited from refusing to offer criminal D’s testimony when L reasonably believes, but does not know, that testimony is false (L must take remedial measures when he knows testimony is false, and if C refuses to correct the statement, L must withdraw)
• CA—if D commits perjury, L may ask for the court’s permission to withdraw, and if denied, L may embrace a narrative approach and continue to question D up to the point of the falsehood – L may not rely on perjured testimony in closing

Question 4

Communications in the course of representation

Answer 4

Communicating with C—duty to keep C informed of status of the matter and to respond to C’s reasonable requests for information so Cs are able to make informed decisions (including settlement offers and plea bargains)

Improper ex parte communication—L is not permitted to do so unless for “housekeeping” matters or for an emergency

Truthfulness in statements to third person
• L must not knowingly make a false statement or misrepresentation of material fact to a third person
• Withdrawal—if the duty of confidentiality prohibits L from disclosing facts about C’s commission of a crime or fraud and continued representation would assist the crime/fraud, L must withdraw, and can notify affected third party of withdrawal

Communication with persons represented by counsel—L is not permitted to communicate about the subject of the representation with any person L actually knows is represented by counsel unless L has the consent of the other L or is authorized to do so by law

Dealing with persons unrepresented by counsel—when L knows or should know that an unrepresented person misunderstands L’s role, L must make reasonable efforts to correct the misunderstanding (i.e., the person thinks L is disinterested)

Respect for the rights of third persons—L must not use means that have no substantial purpose other than to embarrass, delay, or burden a third party

Trial publicity—L is not permitted to make an extra-judicial statement that L knows or reasonably should know will be disseminated publicly and have a substantial likelihood of materially prejudicing an adjudicative matter in a proceeding (unless to protect C from substantial undue prejudicial effect of recent publicity not initiated by C or L)

Special responsibilities of prosecutor—must lay charges only when supported by probable cause, see that D is accorded all of his constitutional due process rights, seek a guilty verdict based on the evidence and a showing of proof beyond a reasonable doubt, and take special precautions to prevent and reverse conviction of innocent Ds