Maintaining the Integrity of the Profession - Advocates Flashcards
3.1 - Meritorious Claims & Contentions
DON’T BRING FRIVOLOUS CLAIMS
Lawyer SHALL NOT bring/defend a proceeding or issue UNLESS there is a basis in LAW AND FACT for doing so that is NOT FRIVOLOUS, which includes a GOOD FAITH argument for extension/modification/reversal of existing law.
Lawyer for D in criminal proceeding or respondent in proceeding that could lead to incarceration may still defend proceeding and require every element to be established.
3.2 - Expediting Litigation
DON’T STALL
Lawyer SHALL make reasonable efforts to expedite litigation consistent with client interests.
3.3 Candor Toward the Tribunal
DON’T LIE TO JUDGES OR OMIT DAMAGING PRECEDENT OR LET YOUR CLIENT LIE
(a)(1) Lawyer SHALL NOT knowingly make a FALSE STATEMENT of fact or law to tribunal or FAIL TO CORRECT false statement of material fact or law made previously.
(a)(2) Lawyer SHALL NOT knowingly FAIL TO DISCLOSE known adverse legal authority (bad precedent) in the controlling jurisdiction that hasn’t been disclosed by opposing counsel. (OSTRICH BURIED HEAD IN SAND)
(a)(3) Lawyer SHALL NOT knowingly offer FALSE EVIDENCE. If a lawyer/his client or witness called by lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer SHALL TAKE reasonable remedial measures, including if necessary, disclosure to the tribunal.
(b) Lawyer who reps client and knows someone in the proceeding intends to/is/has engaged in crime/fraud related to the proceeding SHALL take reasonable remedial measures including disclosure if necessary.
(c) The duties in (a) and (b) continue throughout proceeding and apply even if compliance requires disclosure of info protected by Rule 1.6
(d) In ex parte proceeding, lawyer SHALL INFORM tribunal of all material facts known to lawyer that will enable tribunal to make informed decision, even if those facts are adverse.
3.4 - Fairness to Opposing Party & Counsel
a) DON’T OBSTRUCT OPPOSING LAWYER OR HIDE EVIDENCE;
b) DON’T FABRICATE EVIDENCE & DON’T BRIBE WITNESSES;
c) DON’T DISOBEY OBLIGATION FROM COURT;
d) DON’T MAKE FRIVOLOUS DISCOVERY REQUESTS & DON’T FAIL TO COMPLY WITH OPPOSING REQUESTS
e) OBEY RULES OF EVIDENCE
f) DON’T TRY TO GET OTHER PEOPLE NOT TO GIVE OTHER PARTIES RELEVANT INFO UNLESS THE PERSON YOU’RE TRYING TO STOP IS AN AGENT/RELATIVE/EMP OF YOUR CLIENT AND YOU BELIEVE THAT PERSON’S INTERESTS WON’T BE ADVERSELY AFFECTED IF THEY STOP
(a) Lawyer SHALL NOT unlawfully obstruct another party’s access to EVIDENCE or unlawfully ALTER/DESTROY/CONCEAL docs or stuff with evidentiary value. Lawyers SHALL NOT counsel/assist others to do that either.
(b) Lawyer SHALL NOT falsify evidence, counsel or assist witness to testify falsely, or offer unlawful inducement to witnesses.
(c) Lawyer SHALL NOT knowingly disobey obligation under rules of tribunal EXCEPT for open refusal based on assertion that no valid obligation exists.
(d) Lawyer SHALL NOT make FRIVOLOUS DISCOVERY REQUESTS or fail to make diligent effort to comply with opposing legal discovery requests.
(e) Lawyer SHALL NOT, in trial, allude to any matter the lawyer does not reasonably believe is RELEVANT or supported by ADMISSIBLE evidence, assert PERSONAL KNOWLEDGE of facts in issue EXCEPT when testifying as witness, or state PERSONAL OPINION about justness of cause/credibility of witness/culpability of civil litigant or guilt/innocence of accused OR
(f) Lawyer SHALL NOT request person other than client to REFRAIN from voluntarily giving relevant info to another party UNLESS
(1) the person is relative/employee/agent of the client AND
(2) lawyer reasonably believes person’s interests will not be adversely affected by refraining from giving info
3.5 - Impartiality & Decorum of the Tribunal
DON’T COZY UP TO JUDGE OR JURY
A lawyer SHALL NOT:
(a) seek to INFLUENCE a JUDGE/juror/prospective juror/official by means prohibited by law;
(b) COMMUNICATE EX PARTE with such a person during the proceeding unless authorized to do so by law or court order;
(c) COMMUNICATE WITH A JUROR or prospective juror AFTER DISCHARGE of the jury IF:
(1) the COMMUNICATION is PROHIBITED by law or court order;
(2) the JUROR has made known to the lawyer a DESIRE NOT TO COMMUNICATE; or
(3) the communication involves MISREPRESENTATION, COERCION, DURESS or harassment; or
(d) engage in conduct INTENDED to DISRUPT a tribunal.
3.6 - Trial Publicity
DON’T SPOUT OFF PUBLICLY ABOUT ONGOING CASES
(a) 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.
(b) Notwithstanding paragraph (a), 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 of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a 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; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
3.7 - Lawyer as Witness
DON’T BE THE LAWYER OF A CASE WHERE YOU SHOULD BE A WITNESS
(a) A lawyer SHALL NOT act as advocate at a trial in which the lawyer is likely to be a necessary witness 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 work substantial hardship on the client.
(b) 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 precluded from doing so by Rule 1.7 or Rule 1.9.
Perjury Trilemma
In a crim case, D has right to testify or be quiet, and you also have a duty to prevent false testimony. They don’t have a right to lie, but they do have a right to talk if they want, so how do you stop them from lying but still allow them to talk?
Client Perjury
1. Before the client testifies = Duty to Remonstrate
2. Deciding to Offer Testimony = Nix v. Whiteside
3. After the client testifies = Duty to take “reasonable remedial measures”
Perjury Trilemma
1. Learn everything possible about client’s case
2. Keep confidential except to advance client’s interests
3. Reveal confidential info to court > if doing so should become necessary to expose what lawyer KNOWS to be purjery testimony by client
Deciding to Offer Testimony
Civil Case = May refuse to offer evidence that lawyer reasonably believes is false
Criminal Case = Must honor client’s decision unless lawyer knows testimony is false
Nix v. Whiteside
See Rule 3.3 - Candor Toward Tribunal / Don’t Lie to the Court
Charged with murder, D says to attorney I have to say I saw something metallic or I’m gonna be convicted. Atty says hey wait, you told me you didn’t see a gun. I can’t let you lie on the stand. In the Cedar Rapids jail, they thought someone else had been successful in a self defense case on a murder by saying they’d see the gun. Atty thinks that’s enough to know this person is gonna lie on the stand. So are you suborning perjury if you let this person testify? The person does testify, but the atty talks them out of saying they saw something metallic. Brings them back to what they were saying at the beginning. They don’t say they saw something metallic. They get convicted, then appeal and say their right was violated because they should’ve been able to talk out of it.
Court says there was no ineffective assistance of counsel, lawyer coaching him not to perjure was fine.
Ex Parte Proceedings
Basically the judge and one party, which is abnormal because normally you would have the other side present to contest stuff.
If there’s a temporary restraining order, you can go in there to the court with just one party there.
But 3.3(d) requires a lawyer in an ex parte proceeding to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision.
A motion to continue commonly involves this problem. Where you need a motion to continue the proceedings and the other party can’t show up, so it’s on sudden notice where you go into court and you’re like hey pls lemme keep going and the other side said sure I can talk to you, judge, and their arguments against the motion to continue are X. So please let us continue.
People v. Casey
Underage client committed trespass/underage drinking. Pretended to be her friend/stole identity. Her attorney found out and went along with it, pretending to represent friend (the client). Atty got the court to dismiss the charges but the friend would have a criminal record and would have to petition the court to have the record sealed. Friend said forget that and complained about Atty.
Court punished Atty with 45 day suspension and made him retake MPRE.
Rule: Attorneys have a duty of candor to the court even if doing so requires disclosing confidential info sometimes. See 3.3
Howes
This case is about 5.2(b)
Prosecutor was prosecuting murder charge. D started talking to Atty, the prosecutor. D’s lawyer said stop calling my client. Prosecutor kept doing it. Prosecutor did check with his supervisor, but mainly about evidence and constitutional issues, not ethics. Prosecutor kept calling, but never asked questions. Also didn’t notify D’s attorney, who eventually found out and complained about prosecutor.
Court said prosecutor can still be liable for professional misconduct if he acted in reliance on a supervisor’s advice if that advice didn’t resolve an arguable question of professional duty.
Riehlmann
This is about Rule 8.3 (rat out your friends!)
Atty’s friend was a prosecutor who hid evidence that would have exonerated a death row inmate. Atty had a bunch of personal issues and didn’t tell anyone until much later. Eventually he told everyone in time to save inmate.
Lawyers have ethical obligation to promptly report other lawyers’ ethics violations.
Kimmel
This is about Rule 5.1
Kimmel was a super overworked associate doing lemon law mass volume cases. She was consistently given more pressure and nobody bothered to train her. Bosses responded to her complaints with more work. Understandably, she went crazy and procrastinated on major problems until it meant screwing up lots of clients’ cases.
Court punished the partners in charge of Kimmel and suspended them for 90 days.
