Litigation & Other Forms of Advocacy Flashcards
Frivolous Claims
A lawyer cannot:
* bring frivoulous claims
* assert frivolous defenses
* take frivoulous positions
Frivolous means the lawyer does not have a good faith argument under current law and changing law
What is not frivolous?
To assert a position:
* without first fully substantiating all the facts
* knowing that vital evidence can be unconvered only through evidence
* even though the lawyer believes it will not ultimately prevail
Still in good faith
Exception for Defending Criminal Defendants
For Frivolous Claims
When representing a criminal defendant or someone who could be incarcerated, the lawyer can make the prosecutor prove every element.
Duty to Expedite Litigation
A lawyer must make reasonable efforts to expedite litigation consistent with the client’s legitmate interests.
Does not include financial benefit for the client
Duty of Candor
A lawyer must advocate honestly before an official or body that issues binding legal judgment.
Candor Regarding Law
Requirements
- Cannot knowingly make false statements of law
- Must corrrect unintentional, material false statements of law
- Must disclose adverse controlling law if opponent does not
Candor Regarding Facts
Requirements
- Cannot knowingly make false statements of fact
- Must corrrect unintentional, material false statements of fact
- No duty to volunteer facts (unless for pro se proceedings)
The lawyer must know or believe the fact to be true based on reasonably diligent inquiry
Candor Regarding Evidence
Requirements
- Cannot offer evidence known to be false
- May refuse to offer evidence reasonably believed to be false (except criminal defendant testimony)
- Must take reasonable remedial measures if false evidence is found to have been offered (supersedes confidentiality)
Duty to rectify continues until proceeding is completely done (including appeals)
Discovery of False Testimony
Procedure
- Try to persuade client to not lie
- If won’t, consider withdrawal
- If all else fails, disclose to the judge
Same procedure if discover false evidence was offered
Some jurisdictions (CA) allow narative testimony by the lawyer, but cannot rely on false testimony throughout rest of trial
Duty of Fairness to Opposing Party & Counsel
Requirements
A lawyer cannot:
* Hide, tamper, or falsify evidence
* Make frivolous discovery requests
* Advise a person to avoid talking to opposing side, (unless it is the client, client’s relative, or client’s agent)
* Make unlawful payments/inducements to witnesses
* Violate a court rule or order (unless on basis that it is invalid)
* Cannot alude to anything inadmissible
* Cannot assert personal knowledge/opinion about justness of cause, credibility, or guilt/innocence
Duty to Impartiality & Decorum of Tribunal
A lawyer cannot:
* Attempt to influence court or jurors that violates the RPC
* Disrupt proceedings
* Speak to judge or court officials without other side present
* Talk to jurors about any subject during trial
May interview jurors after trial unless they do not want to talk or it involves misrepresentation, coercion, or harassment
Trial Publicity
Rule
A lawyer must not make a public statement if they should know it is likely to cause material prejudice.
Includes character/credibility, results of examinations, whether defendant will plead guilty or confessed, and anything inadmissible
Trial Publicity
Exceptions
- Dry facts of a case
- Respond to protect client from prejudice caused by another
Lawyer as a Witness
Rule & Exceptions
A lawyer cannot act as an advocate in a case where they are likely to be a necessary witness.
A lawyer can be a witness in the same case if:
* testimony concerns uncontested matters or formality
* testimony concerns nature & value of legal services in case
* withdrawal would cause substantial hardship to client
Disqualification as the lawyer is not imputed to firm, but need client’s informed consent confirmed in writing if another lawyer in firm replaces
