Litigation ethics

Question 1

Rule 11(b)(2)

Answer 1

A lawyer certifies his arguments are warranted by existing law or by non-frivolous argument for: modification or reversal of existing law or creation of new law.

Question 2

Frivolous definition

Answer 2

a reasonable attorney, could not have believed the action was justified legally or factually (not a chance in hell)

Question 3

Sanctions for Rule 11

Answer 3

limited to “what is sufficient to deter repetition” of conduct. including
Non-monetary sanctions

Dismissal

Penalty to court

Penalty to moving party

Question 4

Safe harbor Provision

Answer 4

Safe harbor provision – Before filing motion for sanctions, must give: Other lawyer 21 days after service of motion to withdraw or correct document.

Question 5

Four Promises made when submitting a pleading.

Answer 5

(1) [the pleading] is not being presented for any improper purpose;
(2) Legal contentions are warranted: By existing law, or By a non-frivolous argument
(3) Allegations & factual contentions: Have evidentiary support or Likely to have evidentiary support after reasonable opportunity for further investigation; &
(4) Denials of factual contentions are warranted.

Question 6

What is an improper purpsoe

Answer 6

Bad faith or

To delay.

Question 7

How much investigation is necessary

Answer 7

Rule 11 not intended to chill L ‘s enthusiasm or creativity. View reasonableness of L’s conduct at time pleading filed.

Question 8

Ethics Rules 3.1

Answer 8

A lawyer shall not bring or defend a proceeding or assert or controvert an issue, unless there is a basis that is not frivolous, including good faith arguments for extension, modification or reversal of existing law.

Question 9

Comments to ethics rule 3.1

Answer 9

A lawyer has a conflictin duty to use the legal procedure for the benefit of the client but not to abuse the process

3.1 must take into account the law’s potential to change

Action not frivolous merely because facts have not fully substantiated.

Action not frivolous even if L believes position will not prevail.

Question 10

ethics for Crim Pro mr 3.1

Answer 10

L for criminal defendant may: Defend proceeding “as to require that every element of case be established.”

L’s ethical obligations subordinate to D’s constitutional right to assistance of counsel.

Question 11

Contempt of court

Answer 11

A court shall have power to punish by fine or imprisonment contempt of its authority:

(1) Misbehavior that obstructs administration of justice;
(2) Misbehavior of its officers in their official transactions;
(3) Disobedience to its writ, process, order, rule, decree, or command.

Question 12

Misconduct 3.5(d)

Answer 12

L shall not: Engage in conduct intended to disrupt a tribunal. Duty applies to any proceeding – including a deposition.

Question 13

Means w/ no substantial purpose

Answer 13

L shall not use means that have no substantial purpose other than to:

Embarrass,

Delay, or

Burden

a third person.

Question 14

MR 8.4 Prejudicial admin

Answer 14

M.R. 8.4(d):

“It is unprofessional conduct to engage in conduct prejudicial to the administration of justice.

Question 15

Rule 24 of Utah Rules of App Proc

Answer 15

Briefs must be … free from burdensome, irrelevant, or scandalous matters.

Briefs not in compliance may be disregarded or stricken, … and court may assess attorney fees.

Question 16

Public Statements

Answer 16

L shall not make a public statement that L

Knows to be false or with

Reckless disregard as to its truth or falsity

Concerning qualifications or integrity of a judge….”

Question 17

Candor

Answer 17

M.R. 3.3(a)(2): L shall not knowingly fail to disclose legal authority:

In jurisdiction

Directly adverse &

Not disclosed by opposing party.

Comment

False representation of law = dishonesty.

Need not objectively analyze law, but

Must recognize existence of pertinent legal authorities.

Question 18

False statements

Answer 18

M.R. 3.3(a)(1)&(2): L shall not knowingly:

Make a false statement of

Fact or law to a court, or

Fail to correct a false statement of fact or law
previously made to court.

Duty extends to conclusion of the matter & applies

even if compliance requires disclosure of information protected under M.R. 1.6(confidentiality).

Question 19

Discovery rules

Answer 19

Rule 26(g): L must sign all:

Disclosures,

Discovery requests,

Responses &

Objections

L certifies they are warranted in:

Law &
No improper purpose.

Harass, delay, increase cost

Not unreasonable or unduly burdensome, or expensive.

Sanctions mandatory if violation found under 26(g).

Question 20

Rule 30 depositions

Answer 20

Rule 30(d): All objections must be stated: Concisely in Non-argumentative & Non-suggestive manner. Court may: Impose sanctions, including costs & fees ifL’s conduct frustrates fair examination of deponent.

Court may stop or limit deposition if: Conducted in bad faith or Unreasonably annoys, or embarrasses deponent.

Question 21

discovery orders

Answer 21

Rule 37(a): Court may sanction failure to comply with discovery:

Deposition notices,

Interrogatories &

Requests for admissions.

Question 22

Scheduling order and pre trial conference

Answer 22

Rule 16(f): J may sanction failure to:

Obey scheduling or pretrial order; or

Participate in pretrial conference in good faith.

Question 23

Ethical rules of Discovery

Answer 23

M.R. 3.2: L shall make: Reasonable efforts to Expedite litigation Consistent with interests of C.

Question 24

Delay for financial reasons

Answer 24

MR 3.2 comment 1
a lawyer may not file frivolous motion to gain economic benefit.

May file a non-frivolous motion, if

C willing to incur expense of motion

Because of economic benefits of delay

Question 25

Delay for personal reasons

Answer 25

Not proper for L to: Routinely fail to expedite litigation solely forConvenience of advocates.

M.R. 3.2, Comment 1.

If L seeks delay for personal reasons, L must ask if delay will harm C:
M.R. 1.1 (Competence)

M.R. 1.7(a) (Conflicts of Interests)

M.R. 1.4 (Duty to keep C informed)

Question 26

Frivolous discovery requests

Answer 26

M.R. 3.4(d): L shall not: Make a frivolous discovery request or Fail to make reasonably diligent effort to comply with a discovery request

Question 27

Extra Judicial Statements Main Rule

Answer 27

M.R. 3.6(a): L shall not make an extrajudicial statement that:

L knows or reasonably should know

Will have a substantial likelihood of

Materially prejudicing a proceeding.

Question 28

Things the Lawyer may say extra judicially in all cases

Answer 28

L may state:

Claim, defense, & identity of persons involved;

Information in public record;

Investigation/case in progress;

Result of procedural process;

Request assistance in obtaining evidence;

Warning about a person where reason to believe likelihood of substantial harm to public.

Question 29

Things the lawyer may say extra judicially in criminal cases

Answer 29

M.R. 3.6(b)(7): L may state in criminal cases:

Identity, residence, job & family status of accused

If D has been apprehended

Information necessary to aid apprehension

Fact, time & place of arrest

Identity of cops & length of investigation.

Question 30

Things the lawyer may say

Answer 30

M.R. 3.6(c): L may make a statement:

That a reasonable L would believe necessary

To protect C from

Substantial undo prejudice of recent publicity

Not initiated by L or L’s client.

Must be limited to information necessary to mitigate adverse publicity.

Question 31

what Lawyer shouldn’t say

Answer 31

Shouldn’t comment on:

Character,

Credibility,

Reputation, or

Criminal record of a

Party or witness.

Question 32

Things Lawyer cannot say

Answer 32

MR 3.6 comment 5
Shouldn’t comment on:

Results of test

Refusal to take a test

Nature of evidence to be used at trial.

Question 33

Things a lawyer cannot say criminal

Answer 33

Shouldn’t comment on:

Possibility of plea

Existence of confession

Refusal to testify

Guilt or Innocence

Question 34

Catch all for things you cannot say at all ever

Answer 34

Shouldn’t comment on information L knows to be:

Inadmissible at trial, or

Would create a substantial risk of prejudicing an impartial jury.

Question 35

Ethics Rules at Trial

Answer 35

M.R. 3.4(e): L may not: Allude to any matter L does not reasonably believe to be Relevant, or Will not be supported by the evidence.

L may not: Assert personal knowledge of facts except When testifying as a witness; or

L may not state a personal opinion as to: Justness of a cause; Credibility of a witness, Culpability of civil litigant, or Guilt or innocence of criminal defendant

Question 36

advocate witness rule

Answer 36

M.R. 3.7(a): L shall not:

Be an advocate at trial if

L likely to be witness.

Question 37

Exceptionis to the advocate witness rule

Answer 37

Unless testimony relates to:

Uncontested issue;

Nature & value of legal services;

Disqualification would cause substantial hardship on C.

Violation may result in:

Disqualification; &

Disciplinary procedures.

Question 38

L in L firm testifying

Answer 38

M.R. 3.7(b): L may act as advocate in trial in which:

Another lawyer in L’s firm

Likely to be a witness

Unless precluded by Rule 1.7 or 1.9.

Question 39

False Evidence

Answer 39

M.R. 3.3(a)(3): L shall not: Offer evidence L knows to be false.

M.R. 3.3(a)(3): L may: Refuse to offer evidence, Other than of criminal defendant, that L reasonably believes is false.

M.R. 3.3(a)(3): If client or witness has offered false evidence, L shall take: Reasonable remedial measures, Including, if necessary, disclosure to court.

Question 40

Steps prior to disclosure of lying client

Answer 40

MR 3.3 Comment 10

Persuade C not to lie, or correct lie.

Seek to withdraw if will remedy situation.

Disclose to court.

Court then decides:

Tell jury about perjury
Order a mistrial
Nothing.

Question 41

Duration of the lawyers obligation to the court

Answer 41

Duty only extends to conclusion of proceeding.

M.R. 3.3(c).

Question 42

Malicious prosecutions

Answer 42

Elements: 1. Action terminated in P’s (Original Defendant’s) favor;

2. Brought without probable cause; &

3 Filed with malice.

Question 43

Defamation suits

Answer 43

L has immunity from defamation suits for statements in judicial proceeding.
Restatement § 57(1).

Applies to – Lawyers, Witnesses, & Judges

Rationale: Necessary for zealous advocacy.

Question 44

Criminal Evidenec

Answer 44

L must: Notify prosecutor of L’s possession of evidence, or Turn evidence over to prosecutor.

Failure to do so could subject L to Risk of prosecution as an accessory after the fact.

Question 45

Ethical rules of handling evidence

Answer 45

M.R. 3.4(a): L shall not: Obstruct another party’s access to evidence or Alter, destroy or conceal material having potential evidentiary value.

Comment 2
L may take: Temporary possession of evidence To conduct limited examination
That will not alter or destroy material characteristics.

Question 46

False statements in negotiations

Answer 46

A lawyer shall not make a false statement of material fact or law to a third person.

Misrepresentation may occur by: an Affirming statement L knows is false or Failing to correct a misconception

Comment 2
Under generally accepted conventions in negotiation, certain types of statements are not taken as statements of material fact.”

Question 47

Loaning clients money

Answer 47

M.R. 1.8(e): Does not allow L to advance: Living expenses or Medical expensesDuring litigation.

The lawyer may pay: Minor sums connected to litigation basic local telephone service bus passes to allow indigent C to have contact with L regardless of whether funds will be repaid.