Litigation and Other forms of Advocacy Flashcards
What do the duties of impartiality, civility, courtesy, and decorum require?
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.
What is the duty to avoid frivolous claims?
ABA - 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 present a claim that is not warranted under existing law (unless it can be supported by a good-faith argument for a change in existing law)
What is the duty to expedite litigation?
ABA - 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)
CA - no specific duty to expedite litigation; instead, L must not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense
What is the 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
What is the duty of fairness to the opposing party/counsel?
- Access to Evidence: L must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal material having potential evidentiary value
CA - follows ABA rule and adds: L is prohibited from suppressing any evidence that L or L’s C has a legal obligation to reveal or produce
- 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
What is the general rule regarding client fraud and perjury by a client or witness?
L is prohibited from knowingly (must have actual knowledge) offering false evidence and may refuse to offer evidence that L reasonably believes is false
What must L do if he learns of false material evidence after its been offered?
L must take reasonable remedial measures
CA - unlike ABA, reasonable remedial measures DO NOT include disclosure of C’s confidential information that L is required to protect
What are the rules regarding a Criminal Defendant’s false testimony?
General rule = L is prohibited from refusing to offer criminal defendant’s testimony when L reasonably believes, but does not know, that testimony is false
ABA = L must take remedial measures when he knows the testimony is false, and if C refuses to correct the statement, L must withdraw
CA = if D intends to commit perjury, L may ask to withdraw, and if denied, L may embrace a narrative approach and continue to question defendant up until the point of the falsehood. L may not rely on the false testimony in closing arguments
What is the duty of communication?
L has a duty to keep C reasonably informed of the status of the matter and respond to C’s reasonable requests for information so C’s are able to make informed decisions (including settlement offers and plea bargains)
What constitutes improper ex parte communication?
L is not permitted to speak with the judge without the other party present unless it is for housekeeping matters or an emergency
What are L’s duties of communications to 3rd parties?
L must not knowingly make false statements or misrepresentations of material fact or law to a 3rd 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 3rd party of withdrawal
May L communicate 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
What are L’s duties with respect to 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
What statements may L make related to 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 the substantial undue prejudicial effect of recent publicity not initiated by C or L)
What special responsibilities does a prosecutor have?
A prosecutor must lay charges only when supported by probable cause, see that defendant 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 and reverse conviction of innocent defendants
