Litigation responsibilities

Question 1

PUBLIC STATEMENTS NOT ALLOWED

What is the rule re: public prejudicial stmts?

Answer 1

No statement may be made by a lawyer that reasonably knows would expect to be disseminated if the lawyer knows OR reasonably should know it will have a substantial likelihood of materially prejudicing a proceeding.

Examples of statements NOT allowed include statements regarding:

1. Character, reputation or criminal record of a party
2. Identification of witness or expected testimony
3. Possibility of a guilty plea, existence of a confession, and opinion as to guilt or innocence of defendant or suspect
4. Information lawyer knows or reasonably should know will be inadmissible as evidence
5. Fact that defendant is charged with crime UNLESS stating it merely as an accusation and that the defendant is presumed innocent

Question 2

PUBLIC STATEMENTS PERMITTED

What are4 categories of public statements a lawyer CAN usually make?

Answer 2

Examples of PERMITTED statements include:

1) Dry Facts about the case
2) A warning of danger where there is a reason to believe of a likelihood of substantial harm to a person or the public interest
3) In a criminal case, information necessary to aid in apprehension of the accused
4) Right of reply: A lawyer may make a statement to the extent necessary to protect a client from substantial prejudicial effect of recent publicity not initiated by the lawyer of client

Question 3

What is the rule re: bringing non-meritorious claims and contentions?

Answer 3

RULE = a lawyer shall NOT bring or defend a proceeding, or assert or controvert an issue therein, UNLESS there is a basis in LAW and FACT for doing so that is not FRIVOLOUS

Re: criminal proceedings –a lawyer for the ∆ in a proceeding that could result in incarceration MAY nevertheless defend the proceeding as to require that EVERY element of the case be est’d (i.e. even if known to be guilty, a lawyer argue not guilty by having prosecution prove case)