MCQ 2: Special Roles for Lawyers Flashcards
when does the Bronston “literal truth” defense apply?
where a defendant’s allegedly false statements are indisputably literally true
when does paragraph (d) of 1.13 kick in?
once the attorney fulfilled his obligation in (c)
if the lawyer is given tangible evidence by someone who is NOT his client, does he have to turn it over to authorities and say where it came from?
if the evidence is from a non-client and it’s in the lawyer’s possession, he DOES have to turn over the evidence and say where it came from because the person is not protected by A/C privilege
under 4.1(b) what are the exceptions to confidentiality under 1.6?
1) to prevent a client fraud or crime that will cause “substantial financial injury” to a third person if the client used the lawyer’s services in committing the misconduct
2) fraud already happened but the injury can be prevented, mitigated or rectified
3) comply with law or court order
According to Rule 2.3, what do judges require lawyers in proceedings before the court to refrain from?
manifesting bias or prejudice or engaging in harassment
when a client is representing a corporation who is the client?
the corporation itself, not anyone who works for it or even runs it
what should a lawyer do under paragraph (c) of 1.13?
go up as high as they can and try to stop or address the issue, free from confidentiality
can the lawyer discuss any possible consequences of proposed conduct of a client that might be criminal or fraudulent?
Yes
Generally, what can the smallest amount of obstruction interference with the courts, grand juries or enforcement agency lead to?
years, even decades in prison, even if effort fails
what are 3 categories of issues imposed by possession of real evidence?
1) ethical obligations of the lawyer - 3.4(a)
2) requirements of criminal law
3) A/C privilege
what must an attorney be sure of when it comes to clients lying?
he must KNOW that he is going to lie (NIX)
according to THUL what should lawyers be sanctioned for?
for not citing case law
if you can’t persuade your client not to commit perjury what is the 2nd best option?
take the “narrative” approach where the client tells the story as a narrative, not as regular testimony and the client ignores what the client says for the rest of the case
is threatening criminal prosecution as a negotiating tactic allowed?
in the earlier version of the model code it was but the newer version removed that prohibition
what is liability for a lawyer based on?
statements/representations (or silence)
when may representation of one client forbid the law firm from representing an affiliate of the client?
1) client and lawyer agree that affiliates are clients of the firm (only factor that’s dispositive)
2) two companies operate as “alter egos”
3) two companies have integrated operations and management
4) same in-house legal staff handles matters for both companies
According to rule 8.4, when is the lawyer engaging in professional misconduct?
when they are conducting anything involving dishonesty, fraud, deceit or misrepresentation
after (d) and the client is sued or indicted what does the attorney return to?
having attorney/client privilege
is there privilege for employees of a corporation that the attorney is representing if the attorney told the employees that they’re not representing them?
no
can a lawyer counsel a client that they KNOW is criminal or fraudulent?
NO
what is the 5 part test to determine when the privilege applies to employees and not just the corporation:
1) must show that the employee approached counsel seeking legal advice
2) the employee made it clear that they were seeking representation in their individual and not corporate capacity
3) lawyer communicated with the employee in their individual capacity
4) conversations with counsel were confidential
5) conversation did not involve general affairs of the corporation
what is the duty of the lawyer to the client limited to?
legitimate, lawful conduct (NIX)
if a lawyer is told about tangible evidence by his client and it is not in his possession does the lawyer have to alert authorities and say where the information came from?
the lawyer does not have to report the evidence to authorities because it is not in his possession and he does not have to say where the information came from due to A/C privilege
what must a lawyer’s knowledge of falsity be based on?
the client’s express admission of intent to lie (McDowell) (Best Rule)
is the representation actionable if representation is not an expression of pure legal opinion…but rather a statement implying facts that support a legal opinion?
yes
May a lawyer counsel a client to engage in conduct that the lawyer knows is fraudulent or criminal?
no MC 1.2(d)
what must a client show if they suspect that a client is lying?
evidence (RIEL)
what type of concurrent conflict of interests can occur when representing an entity client?
1) representation of one client can be adverse to another client
2) significant risk that representation can materially limited by a lawyer’s responsibility to another client, a former client or a third party
what is a lawyer supposed to do if they KNOW that their client is going to engage in criminal or fraudulent behavior?
withdraw before the client does the behavior (or immediately upon learning about it)
Under rule 3.3, what should a lawyer refrain from doing in the tribunal?
not knowingly:
1) make a false statement of fact or law or fail to correct a false statement
2) failure 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
3) offer evidence that the lawyer knows is false
what are the 3 components of the BRADY violation?
1) evidence at issue must be favorable to the accused
2) evidence must have been suppressed by the state
3) prejudice must have been ensued
what can a lawyer do when a client is going to engage in conduct that the lawyer knows is fraudulent or criminal?
he discuss the legal consequences of any proposed conduct MC 1.2(d)
what is the “bad client” problem?
when you’re representing a client engaged in fraud or some other type of falsity or misrepresentation
under rule 8.4 what is considered professional misconduct for a lawyer?
1) to violate or attempt to violate the Rule of Professional Conduct or knowingly assist another to do so
2) engage in conduct involving dishonesty, fraud, deceit or misrepresentation
what do some potential sanctions of spoliation include?
1) dismissal of claim
2) granting judgment for prejudiced party
3) suppression of evidence
4) adverse inference
5) fines
6) attorney fees and costs
besides being sanctioned for destroying evidence relevant to a legal action, what else can the lawyer be sanctioned for?
not preserving evidence that is likely to be relevant to future actions (BASF CATALYSTS)
if a lawyer is given tangible evidence by their client and they take it into their possession, are they obligated to turn it over to authorities and do they have to say where the evidence came from?
If the evidence is in their possession, they DO have to turn it over but they CANNOT reveal who it came from due to A/C privilege
what happens if nothing is done under (d)?
(c) picks back up
According to 3.3 what can a lawyer not do?
1) make a false statement of fact or law or fail to correct a false statement of material fact
2) fail to disclose to the legal authorities in the jurisdiction any adverse to the position of the client and not disclosed by opposing counsel
3) offer evidence that the lawyer knows to be false
if the lawyer is the one that commits the wrongdoing during the trial, is there a protection of A/C privilege?
no (RYDER)
what are the best option if a lawyer becomes aware that their client is about to commit perjury?
try to persuade the client not to
what can a client offer when discussing possible legal consequences of proposed conduct that might be criminal or fraudulent?
good faith effort to determine the validity, scope, meaning or application of the law
what factors should be considered when determining duty/options of the lawyer in possession of tangible evidence that may be relevant to a criminal investigation?
1) A/C privilege
2) Client’s fifth and sixth Amendment rights
3) protection from criminal prosecution for lawyer
4) state’s interest in investigating and prosecuting a crime
5) right of owner of property to get it back
6) public safety
under rule 4.1, what can a lawyer NOT KNOWINGLY do?
1) make a false statement of material fact or law to a third person
2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client (unless prohibited by 1.6)
when information is given that’s not from your client (and not protected by A/C privilege) but it will hurt your client do you have to reveal it?
yes
when a company changes hands, does the A/C privilege transfer?
depends on the practical consequences rather than the formalities of the particular transaction
what must an attorney do about past testimony that was (demonstrably) false?
they must disclose
what may false statements also constitute?
discovery violations leading to the lawyer or client being held in contempt (Jones v. Clinton)