Meritorious Claims; Candor to the Tribunal - July 7 Flashcards
What limitations do the MRPC place on a lawyer’s statements regarding the qualifications or integrity of a judge, adjudicatory officer, public legal officer, or a candidate for election or appointment to judicial or legal office? (Q)
Under the MRPC, a lawyer may not make a statement regarding the qualifications or integrity of a judge, adjudicatory officer, public legal officer, or a candidate for election or appointment to judicial or legal office if:
the lawyer knows the statement to be false or
the lawyer acts with reckless disregard of whether the statement is true or false.
A lawyer acts with reckless disregard of truth or falsity if (1) the lawyer is aware that the statement is probably false, or (2) the lawyer has serious doubts as to whether the statement is true.
Does a lawyer have the duties of candor toward the tribunal, fairness to the opposing party and counsel, and respect for the impartiality and decorum of the tribunal even if representing a client in a nonadjudicative proceeding? (Q)
Yes. A lawyer has the duties of candor toward the tribunal, fairness to the opposing party and counsel, and respect for the impartiality and decorum of the tribunal even if the lawyer is representing a client in a nonadjudicative proceeding (i.e., a proceeding before a legislative body or an administrative agency). This means that even if a lawyer is not representing a client before a formal tribunal, the lawyer must engage in appropriate decorum and forthrightness. Just like a court, a nonadjudicative decision-making body should be able to rely on the integrity of the submissions made to it and expect lawyers to exercise proper decorum.
Is a lawyer prohibited from bringing or defending a claim, or from asserting or contesting an issue, without a nonfrivolous basis in law and fact for doing so? (Q)
Yes. A lawyer is prohibited from bringing or defending a claim, or from asserting or contesting an issue, without a nonfrivolous legal or factual basis for doing so. A claim or assertion is frivolous if a lawyer cannot make a good-faith argument about its merits or if the lawyer cannot support it with a good-faith argument for an extension, modification, or reversal of existing law.
In addition to appearing in the rules of professional conduct, this prohibition may also be part of the procedural or other court rules in a given jurisdiction.
In representing a criminal defendant, does a lawyer violate the rule against making frivolous assertions if the lawyer requires proof of every element of the case against the defendant? (Q)
No. A lawyer representing a criminal defendant does not violate the rule against making frivolous assertions by requiring the prosecution to establish every element of the case. In other words, the lawyer is not required to concede elements or claims brought against a criminal defendant, even if those elements seem obvious or if the lawyer does not believe the client will prevail.
In fact, this kind of zealous advocacy may be required as part of the defendant’s constitutional right to assistance of counsel. The rules of professional conduct are subordinate to a defendant’s constitutional rights in this situation.
A lawyer represented a defendant in a criminal robbery trial. The prosecution introduced video evidence that clearly showed the defendant’s face as he robbed a convenience store. The lawyer was aware that the video accurately depicted his client’s commission of the crime.
May the lawyer properly argue that the person on the video is not his client? (Q)
Yes. The lawyer may argue that the person on the video is not his client. A lawyer generally must only make claims or assertions for which there is a good-faith basis. However, a lawyer’s obligations under this rule are subordinate to federal or state constitutional law, which entitles a criminal defendant to the zealous and effective assistance of counsel. Thus, a lawyer representing a criminal defendant may defend the client by requiring every element of the case to be established. The lawyer is not required to concede elements or claims, even if those elements seem obvious or if the lawyer does not believe the client will prevail.
Here, the client was a criminal defendant. The identity of the person in the video was a key element of the case. Thus, the lawyer may require the prosecution to establish this element, even if the video clearly showed the client’s identity.
If a lawyer files an action or asserts a defense before fully substantiating the facts, or if the lawyer expects to develop the facts further through discovery, is the action or defense necessarily considered frivolous?
No. If a lawyer files an action or asserts a defense before fully substantiating the facts, or if the lawyer expects to develop the facts through discovery, the lawyer has not necessarily acted frivolously. Lawyers typically expect to develop evidence during discovery, and the law allows some leeway in making assertions subject to further proof.
However, to avoid making frivolous allegations, the lawyer must inform herself about the facts of the case and the applicable law and determine that she can make a good-faith argument in support of her client’s position.
Does a lawyer necessarily violate the rule against making frivolous allegations if the lawyer brings a claim or makes an assertion that is unsupported by existing law? (Q)
No. A lawyer does not necessarily violate the rule against making frivolous allegations if the lawyer brings a claim or makes an assertion that is unsupported by existing law. Rather, a claim or assertion is nonfrivolous if it is supported by a good-faith argument for an extension, modification, or reversal of existing law.
Does a lawyer violate the rule against making frivolous allegations merely by bringing a claim or making an assertion that she believes will not succeed? (Q)
No. A lawyer does not necessarily violate the rule against making frivolous assertions if the lawyer brings a claim or makes an assertion that she believes will not succeed. So long as the lawyer has a good-faith argument in support of the claim or assertion, she may make the claim or assertion even if she does not anticipate success.
A client wanted to sue his neighbor for intentional trespass for allowing the neighbor’s dog to wander onto the client’s property. The lawyer researched the claim and determined that he could technically argue in good faith that the dog’s wandering amounted to intentional trespass, but the lawyer felt strongly that the case would not succeed before a jury.
May the lawyer bring suit against the neighbor for intentional trespass? (Q)
Yes. The lawyer may bring the suit against the neighbor. A lawyer is prohibited from bringing a claim or defending against a claim unless there is a basis for doing so in law and fact that is not frivolous. To bring a claim, the lawyer must inform himself about the facts of his client’s case and the applicable law and determine that he can make a good-faith argument in support of his client’s position. A lawyer is even allowed to bring a claim he thinks will be unsuccessful as long as he has a good-faith argument in support of the claim.
Here, the lawyer researched the claim and existing law and determined that he could make a good-faith argument that the dog’s wandering amounted to intentional trespass. Thus, because the lawyer can make a good-faith argument in support of the client’s position, the lawyer may bring the suit even though he ultimately believes it will not succeed.
Is a lawyer required to make reasonable efforts to expedite litigation consistent with the client’s interests? (Q)
Yes. A lawyer is required to make reasonable efforts to expedite litigation consistent with the client’s interests. This means staying on schedule and not seeking postponements unless absolutely necessary. It also means avoiding delays made solely for the purpose of frustrating the opposing party’s case.
If a client stands to benefit financially or otherwise from a lawyer’s delay in litigation, is this a legitimate interest of the client that will justify the lawyer’s actions? (Q)
No. The fact that a client may benefit financially or otherwise from a lawyer’s delay in litigation is not a legitimate interest of the client that will justify the lawyer’s actions. Any delay or failure to expedite must have other, legitimate reasons to avoid violating the rules of professional conduct.
May a lawyer sometimes seek to postpone or delay the progress of litigation for the lawyer’s own personal reasons? (Q)
Yes. Although a lawyer is required to make reasonable efforts to expedite litigation consistent with the interests of the client, the lawyer may, on occasion, seek a postponement for personal reasons, such as a vacation or a family emergency. However, it is not proper for a lawyer to routinely fail to expedite litigation merely for the convenience of the lawyers in the case.
May a lawyer fail to expedite litigation as a way to frustrate an opposing party’s attempt to obtain a lawful remedy or repose? (Q)
No. A lawyer may not fail to expedite litigation if the reason is to frustrate an opposing party’s attempt to obtain a lawful remedy or repose. In other words, if a lawyer’s primary purpose in seeking a postponement is to interfere with an opponent’s relief, or to delay the resolution of conflict, then the lawyer has engaged in professional misconduct. This is true even though sometimes other lawyers may engage in this conduct, and courts may tolerate it. The relevant question is whether a competent lawyer acting in good faith would consider the lawyer’s course of action to have some significant purpose other than mere delay.
A lawyer represented a client in a divorce. The client and his wife agreed on a settlement, and all that remained was for the parties to sign the settlement documents. The client then learned that his wife had recently become engaged to be married. The client was angry at this development and instructed the lawyer to delay the proceedings indefinitely to prevent finalizing the divorce and thereby prevent the wife from remarrying.
May the lawyer follow the client’s instructions to delay the proceedings? (Q)
No. The lawyer may not follow the client’s instructions to delay the proceedings. A lawyer may not fail to expedite litigation if the reason is to frustrate an opposing party’s attempt to obtain a lawful remedy or repose. In other words, if a lawyer’s primary purpose in seeking a postponement is to interfere with an opponent’s relief, or to delay the resolution of conflict, then the lawyer has engaged in professional misconduct.
Here, the client and his wife agreed to the divorce, and the only step remaining was for the parties to sign the settlement documents. The client’s motivation in seeking delay was to frustrate the wife’s lawful remedy of divorce and to obstruct her repose by preventing her remarriage. Thus, the client’s instructions would violate the lawyer’s ethical duties, and the lawyer may not follow the client’s instructions.
A lawyer was representing a client on a criminal robbery charge. On the day of trial, the lawyer’s wife went into labor and was hospitalized. If the trial had to be rescheduled, it would not take place for another nine months because of the court’s very full trial schedule. The lawyer was a generally diligent attorney who had not previously asked the court for delays or postponements.
May the lawyer properly seek a postponement of the trial? (Q)
Yes. The lawyer may properly seek a postponement. A lawyer is required to make reasonable efforts to expedite litigation consistent with the client’s interests. However, the lawyer may, on occasion, seek a postponement for personal reasons, so long as the lawyer does not routinely seek postponement for his own convenience.
Here, the lawyer would be seeking a postponement of the trial because the lawyer’s wife was in labor and was hospitalized. This is a postponement for personal reasons, and the lawyer had not previously sought delay for the lawyer’s own convenience in this or other cases. Thus, the lawyer may properly seek a postponement of the trial.
