Litigation & Other Forms of Advocacy

Question 1

Can a lawyer bring or defend any claims that the client wishes, regardless of legal or factual merit?

Answer 1

No, the lawyer can only defend or bring claims that have a basis in law and fact that are not frivolous.

Rule 3.1

Question 2

When is a claim considered frivolous?

Answer 2

When the lawyer is unable to make a good faith argument on the merits of the action.

Rule 3.1, comment 2

Question 3

Is a claim considered frivolous if the facts have not been fully substantiated and discovery is needed to fully develop them?

Answer 3

No, as long as the lawyer has informed themselves about the facts of their clients’ cases and the applicable law and determined that they can make good faith arguments in support of their clients’ positions.

Rule 3.1, comment 2

Question 4

Is it frivolous to require the prosecution to establish every element in a criminal case?

Answer 4

No. Rule 3.1.

Question 5

Is it proper for lawyers to seek postponement of proceedings for personal reasons?

Answer 5

Yes, but delay is not proper just because it would make it more convenient for the lawyers.

Rule 3.2, comment 1

Question 6

What determines whether a delay is proper?

Answer 6

Ask: would a competent lawyer acting in good faith regard the course of action as having some substantial purpose other than delay?

Examples of improper delay:

• Done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose
• Realizing financial or other benefit from otherwise improper delay

Rule 3.2, comment 1

Question 7

Under Rule 3.3 (Candor Toward the Tribunal), what are the 3 things a lawyer is prohibited from doing?

Answer 7

A lawyer shall not knowingly:

1. make a false statement of fact or law or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
2. fail to disclose legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
3. offer evidence that the lawyer knows to be false.

Question 8

What must a lawyer do if they find out that a client or witness has offered false material evidence to a tribunal?

Answer 8

Step 1: Talk with the client confidentially, advise the client of the duty of candor and seek their cooperation to either withdraw or correct the false statements or evidence.

If that fails → Step 2: Lawyer must take further remedial action. If withdrawal is not permitted or will not undo the effect of the false evidence, lawyer must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. Rule 3.3(a)(3).

Rule 3.3, comment 10

Question 9

Is realizing a financial or other benefit from an otherwise improper delay in the legitimate interest of the client?

Answer 9

No. Rule 3.2, comment 1.

Question 10

True or false: An attorney for a criminal defendant can refuse to offer the defendant’s testimony if the attorney reasonably believes, but does not know, that the testimony will be false.

Answer 10

False. Unless the lawyer has actual knowledge the testimony will be false, the lawyer must honor the client’s decision to testify.

Rule 3.3, comment 9

Question 11

Under Rule 3.3, if there is a case in your controlling jurisdiction that is directly adverse to your client’s case, and the opposing client fails to disclose it in their briefs, are you required to disclose it?

Answer 11

Yes, as long as the case is directly on point and in your controlling jurisdiction, you must disclose it if the opposing counsel fails to do so.

Rule 3.3, comment 4

Question 12

What should a lawyer do if they know that the client intends to testify falsely or wants the lawyer to introduce false evidence?

Answer 12

Seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence.

Rule 3.3, comment 6

Question 13

What should a lawyer do if they know that only a portion of a witness’s testimony will be false?

Answer 13

The lawyer may call the witness to testify but may not elicit or permit the witness to present the testimony that the lawyer knows is false.

Rule 3.3, comment 6

Question 14

What should a lawyer do if they know that someone intends to, or has engaged, in criminal or fraudulent conduct related to the proceeding (ex. bribing a witness)?

Answer 14

Must take reasonable remedial measures, including disclosure if necessary.

Rule 3.3, comment 12

Question 15

When does the duty to rectify false evidence or false statements terminate?

Answer 15

At the conclusion of the proceeding (when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed).

Rule 3.3, comment 11

Question 16

Under Rule 3.4, can a lawyer unlawfully obstruct another party’s access to evidence?

Answer 16

No. A lawyer cannot unlawfully obstruct, alter, destroy or conceal evidence that has potential evidentiary value.

Rule 3.4(a)

Question 17

During pretrial proceedings, do lawyers need to comply with legally proper discovery requests by opposing parties?

Answer 17

Yes, lawyers must make a reasonably diligent effort to search for and provide all legally proper discovery requests.

Rule 3.4(d)

Question 18

During trial, can a lawyer assert personal knowledge or opinion as to the justness of a cause, the witness’s credibility, a civil litigant’s liability, or a defendant’s guilt or innocence?

Answer 18

No.Rule 3.4(e).

Question 19

Can a lawyer request that a person other than the client refrain from voluntarily giving relevant information to another party?

Answer 19

No, unless:

1. Third party is a relative or an employee or other agent of a client; and
2. Lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

Rule 3.4(f)

Question 20

During a proceeding, can lawyers communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors?

Answer 20

No, cannot communicate in any capacity (including socialize) unless authorized to do so by law or court order.

Rule 3.5(b)

Question 21

When can lawyers communicate with a juror or prospective juror (ex. member of the venire)?

Answer 21

After the jury has been discharged, unless prohibited by law or a court order, or the juror does not wish to talk to the lawyer.

Rule 3.5, comment 3

Question 22

Can lawyers improperly influence judges, jurors, or officers of the court?

Answer 22

No. Rule 3.5.

Question 23

In a civil case, lawyers are allowed to make what type of extrajudicial statements?

Answer 23

As long as there is no substantial likelihood of materially prejudicing the proceeding, a lawyer may state:

1. The claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
2. Information contained in a public record;
3. That an investigation is in progress;
4. The scheduling or result of any step in litigation;
5. A request for assistance in obtaining evidence and necessary information; and
6. Warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.

Rule 3.6(b)

Question 24

In a criminal case, lawyers are allowed to make what type of extrajudicial statements?

Answer 24

In addition to the factors listed in Rule 3.6(b)(1-6), lawyers may state:

1. Identity, residence, occupation and family status of the accused;
2. If the accused has not been apprehended, information necessary to aid in apprehension;
3. The fact, time and place of arrest; and
4. The identity of investigating and arresting officers or agencies and the length of the investigation.

Rule 3.6(b)

Question 25

Are lawyers allowed to respond to public statements that are adversely affecting the client? (ex. responding to allegations in a magazine)

Answer 25

Yes, as long as a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client and the statement is limited to contain only such information as is necessary to mitigate undue prejudice.

Rule 3.6, comment 7

Question 26

Can a lawyer serve as an advocate at trial in which the lawyer is likely to be a necessary witness?

Answer 26

No, unless:

1. The testimony relates to an uncontested issue;
2. The testimony relates to the nature and value of legal services rendered in the case; or
3. Disqualification of the lawyer would result in substantial hardship on the client.

Rule 3.7(a)

Question 27

Can a lawyer act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness?

Answer 27

Yes, as long as there are no conflicts of interest under Rule 1.7 or 1.9.

Rule 3.7