Litigation and Other Forms of Advocacy

Question 1

When can a lawyer may act as third-party neutral?

Answer 1

In a non-representative capacity

Question 2

Can lawyer offer evaluations?

Answer 2

A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client. If the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer is not permitted to provide the evaluation unless the client gives informed consent. MRPC 2.3.

Question 3

Investigation v. Evaluation (where is attorney client relationship?)

Answer 3

A legal evaluation should be distinguished from an investigation of a person with whom the lawyer does not have a client-lawyer relationship. Thus, a lawyer retained by a buyer to analyze a seller’s title to property does not have a client-lawyer relationship with the seller. If the lawyer is retained by the person whose affairs are being examined, then the requirements of MRPC 2.3 (as well as all other duties under the Model Rules) apply. MRPC 2.3, cmt. 2.

Question 4

Does an evaluation creates legal duty?

Answer 4

If the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. When the evaluation does result in a legal obligation to a third person, the lawyer may be liable to that person for any negligence in rendering the evaluation. See VI.D. Civil Liability to Non-clients, infra. MRPC 2.3, cmt. 3.

Question 5

Disclosure of evaluation

Answer 5

Except as disclosure is authorized in connection with a report of the evaluation, information relating to the evaluation is protected by the Model Rules regarding confidentiality. MRPC 2.3(c).

Question 6

Puffing v. misrepresentation

Answer 6

The attorney for a seller of real property is permitted to say as part of a sales negotiation that the seller expects a number of offers for the property in the million-dollar price range. The attorney is subject to discipline, however, if he tells a prospective buyer that the seller had a firm offer from an undisclosed buyer for a million dollars, when in fact there was no such offer.

Question 7

Does a lawyer have clients as arbitrator?

Answer 7

A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.

Question 8

Attorney client privilege attach to arbitrator?

Answer 8

No. A lawyer who is serving as a third-party neutral is required to inform unrepresented parties that the lawyer is not representing them. If the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter as a third-party neutral, the lawyer must explain the difference between his role as a third-party neutral and the role of a lawyer who represents a client. MRPC 2.4(b). The lawyer must specifically indicate that the attorney-client privilege does not apply in this context. MRPC 2.3, cmt. 3.

Question 9

Prosecutor wants to represent private prison as private client. Okay?

Answer 9

No. A prosecutor must avoid representation of a private client that would result in a conflict with the prosecutor’s obligation to seek justice on behalf of the public.

Question 10

Prosecutor quesitons without asking if someone is represented

Answer 10

A prosecutor must make reasonable efforts to assure defendants are advised of their right to and the procedure for obtaining counsel and have been given reasonable opportunity to obtain counsel. MRPC 3.8(b). The rule does not forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence. MRPC 3.8, cmt. 2.

Question 11

accused pro se waives pre-trial rights. okay?

Answer 11

A prosecutor must not attempt to obtain a waiver of important pre-trial rights from an unrepresented accused, such as the right to a preliminary hearing. MRPC 3.8(c). This rule does not apply to an accused appearing pro se with the approval of the tribunal. MRPC 3.8, cmt. 2.

Question 12

Broader Brady requirement

Answer 12

In connection with sentencing, the prosecutor must disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. MRPC 3.8(d).

Question 13

Public statements about case

Answer 13

Should only be necessary. Except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, a prosecutor must refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused. A prosecutor must also exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under the Model Rules. MRPC 3.8(f).

Question 14

Post-conviction duty

Answer 14

The prosecutor has an obligation to disclose to the appropriate authority any NEW, CREDIBLE evidence creating a reasonable likelihood that a convicted defendant did not commit the offense for which the defendant was convicted. MRPC 3.8(g)(1).

b. Within jurisdiction

If the conviction was obtained within the prosecutor’s jurisdiction, the prosecutor must also: (i) promptly disclose the new evidence to the defendant (unless otherwise instructed by the court); and (ii) undertake further investigation to determine whether the defendant was wrongly convicted. MRPC 3.8(g)(2).

c. Clear and convincing

A prosecutor must seek to remedy a conviction of a defendant in the prosecutor’s jurisdiction when the new exculpatory evidence is clear and convincing. MRPC 3.8(h).

d. Good faith judgment

As long as the prosecutor makes a good faith, independent judgment that the evidence does not require action, the prosecutor will not be subject to professional discipline. MRPC 3.8, cmt. 9.

Question 15

Can prosecutor be a zealous advocate for the public in an investigation ?

Answer 15

Prosecutors must be objective when investigating leads without regard to whether the leads favor the prosecutor’s case.

Question 16

Representing in non-adjudicative body, like legislature, school board

Answer 16

A lawyer who represents a client before a legislative body or administrative agency in a non-adjudicative proceeding must disclose that he is there in a representative capacity and must generally conform to the Model Rules with regard to candor toward the entity (see VII.C.3. Duty of Candor to the Tribunal, supra), fairness to the opposing party and counsel (see VII.C.4., Duty of Fairness to Opposing Party and Counsel supra), and impartiality and decorum of the tribunal (see VII.B. Impartiality, Civility, Courtesy, and Decorum, supra) as if the lawyer were before a tribunal. MRPC 3.9.

Question 17

No need for lawyer to disclose lawyer

Answer 17

These duties only apply when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer’s client is presenting evidence or argument.

They do not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege or the client’s compliance with generally applicable reporting requirements, such as filing a tax return. MRPC 3.9, cmt. 3.