Litigation Rules Flashcards
Impartiality and Decorum of Tribunal
- Cannot attempt to influence court or jurors in way prohibited by RPC
- Cannot disrupt proceedings
- Cannot speak to judge or court officials without other side present
- Cannot talk to jurors about ANY subject during case (including sending someone to ask them on your behalf)
- Cannot communicate with juror or prospective juror after discharge of jury if:
-The communication is prohibited by law or court order
-The juror has made known to the lawyer a desire not to communicate
-The communication involves misrepresentation, coercion, duress, harassment
Meritorious Claims
To bring a claim, lawyer does not need all of the facts but must have enough to make a good faith argument
Lawyer cannot:
1) Bring frivolous claim
Frivolous = no good faith argument under current law AND no good faith argument for changing law
2) Assert frivolous defense
3) Take frivolous position
EXCEPTION – when representing criminal D, defense counsel can make prosecutor prove every element of crime
Defense counsel can argue a false theory so long as they do not put in false evidence
Expediting Litigation
A lawyer shall make reasonable efforts to:
-expedite litigation consistent with the interests of the client
-Realizing financial benefit from improper delay in litigation is not a legitimate interest of client
Candor towards tribunal- False Law
Cannot knowingly make false statements of law
Must correct unintentional material false statements
Must disclose adverse controlling law if opponent fails to
Candor towards Tribunal re Facts
Cannot knowingly make false statements of fact
Must correct unintentional, material false statements
No duty to volunteer facts (except in ex parte proceedings)
In ex parte proceeding, a lawyer shall inform the tribunal of ALL material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse
Candor towards Tribunal re Evidence
Cannot offer evidence from client, witness you call, or from lawyer that lawyer knows to be false (if client tells L they intend to give false testimony at trial)
A lawyer is subject to discipline for knowingly offering false evidence.
A lawyer MAY refuse to offer evidence that the lawyer reasonably believes to be false (except for the testimony of a criminal defendant) but will not be subject to discipline if he offers the evidence.
Finally, a negligent failure to investigate the evidence will not result in discipline.
If material false evidence offered, and lawyer comes to know of its falsity, must take reasonable remedial measures, including if necessary, disclosure to the tribunal (supersedes duty of confidentiality)
Duty to rectify continues until proceeding is completely over, appeals and all
A lawyer who represents a client in an adjudicate proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal
Duty to take reasonable remedial measures continues until proceeding is completely over
May refuse to offer evidence lawyer REASONABLY BELIEVES is false (except testimony of a criminal defendant)
Can try to persuade otherwise
Consider withdrawal
If all else fails, disclose situation to judge
Fairness to Opposing Party and Counsel
Cannot (5)
1. Hide, tamper with, or falsify evidence that has potential evidentiary value
2. Make frivolous discovery requests or fail to take reasonable efforts to comply with a legally proper discovery request
3. Advise a person not to talk to the other side, UNLESS the person is the client, the client’s relative, the client’s agent, or client’s employee AND the lawyer reasonably believes the person’s interests will not be adversely affected by refraining from giving such info
4. Make unlawful payments to witnesses
Fee cannot be contingent on content of testimony or outcome of case
5. Violate a court rule or order (but can openly refuse to obey on the basis that it is not valid)
Fairness to Opposing Party and Counsel: And in trials, cannot (3)
- allude to anything inadmissible or reasonably irrelevant
- assert personal knowledge of facts in issue
- state personal opinion about justness of cause, credibility of witness, or guilt or innocence of party
Trial Publicity Prohibited Statements
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter, including:
(1) Character or credibility
(2) Results of examinations
(3) Whether defendant will plead guilty
(4) Whether defendant confessed
Anything inadmissible at trial
Trial Publicity Permitted
Dry facts of case, such as:
(1) The identity, residence, occupation, family status of accused
(2) The fact, time, place of arrest
(3) The identity of investigating and arresting officers or agencies
(4) Length of investigation
(5) How the judge ruled on a motion
(6) Statement to protect client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client (Ex: replying to accusations of client’s whereabouts. ‘OJ was on the run’ vs. ‘OJ was at home’).
The rule above applies equally to other lawyers who are associated in a law firm or agency with the lawyers participating in the case.
Lawyer as witness
Lawyer cannot act as advocate in case where lawyer is likely to be a necessary witness (disqualification not imputed to firm but generally need ICCW)
EXCEPTIONS
Testimony concerns uncontested matters or formality
Testimony concerns the nature and value of legal services in the case
Disqualification of the lawyer would cause substantial hardship to client
A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless otherwise precluded (like a potential conflict of interest)
Special Responsibilities of Prosecutor (9)
(1) Must have probable cause to prosecute a charge
(2) Ensure accused advised of right to counsel, how to get counsel
(3) Ensure accused given opportunity to get counsel
(4) Not attempt to get unrepresented accused to waive important pretrial rights
(5) Timely disclose evidence favorable to defendant, like evidence that negates the guilt or mitigates the offense, and in connection with sentencing, disclose to the defense and to tribunal all unprivileged mitigating info known to prosecutor, EXCEPT when the prosecutor is relieved of this responsibility by a protective order of the tribunal
(6) When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood of wrongful conviction, the prosecutor must promptly disclose that evidence to appropriate court or authority
And if conviction was obtained in prosecutor’s jurisdiction, promptly disclose evidence to defendant AND undertake further investigation, or make reasonable efforts to cause an investigation
(7) If clear and convincing evidence establishing that a defendant in the prosecution’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction
(8)Not subpoena other lawyers to give evidence about past or present clients unless evidence is essential to the successful completion of an ongoing investigation or prosecution, is not privileged, and cannot be obtained in another way
(9) Refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused
Failing to Cite Legal Authority Adverse to Client
A lawyer can be disciplined for failing to cite the court to legal authority that is “directly adverse” to the client’s position and is from the “controlling jurisdiction.” If it doesn’t control, you do not have to disclose
False Testimony When Lawyer is Fired by Client
If you talk to a client and the client hires another attorney and then you find out they are falsely testifying, you don’t have to do anything
Destroying Evidence
The attorney must advise the president to keep the records because the records have potential evidentiary value if the company is sued. A lawyer must not counsel or assist a person to destroy material that has “potential evidentiary value
