Model Rules Flashcards
Other lawyers in former government lawyer’s new firm may handle matters in which the former government lawyer participated in while in public service. What are the three restrictions that apply?
(1) that the government lawyer be effectively screened from any participation in the matter,
(2) that the government lawyer be apportioned no part of the fee; and
(3) written notice must be promptly given to the appropriate government agency to enable it to ascertain compliance.
An attorney may not represent a client with interests adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except if:
(1) both the affected client and the prospective client have given written informed consent; or
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client, the disqualified lawyer is timely screen from all participation in the matter and is apportioned no part of the fee, and written notice is promptly given to the prospective client.
Attorney
Refers to the particular lawyer whose conduct is at issue.
Lawyer
usually refers to a different lawyer whose conduct is not at issue; can be used interchangeably with litigator, judge, managing partner, etc.
Subject to discipline
Asks whether the conduct in question would subject attorney to discipline under ABA Model Rules (or Model Code of Judicial Conduct if a judge)
May/proper
Asks whether the conduct in question is professionally appropriate in that it (1) would not subject attorney or judge to discipline; (2) is not inconsistent with the preamble, comments, or text of the Model Rules, or Judicial Code, and; (3) is not inconsistent with generally accepted principles of lawyering.
Subject to litigation sanction
Asks whether the conduct in question would subject attorney or attorney’s firm to sanction - fines, contempt, etc. by a relevant tribunal.
Subject to disqualification
Asks whether the conduct described in the question would subject the attorney or attorney’s law firm to disqualification as counsel in a civil or criminal matter.
Subject to civil liability
Asks whether the conduct in question would subject attorney or attorney’s firm to civil liability arising from malpractice suit, misrepresentation, or breach of fiduciary duty.
Subject to criminal liability
Asks whether conduct in question would subject attorney to criminal liability arising from prosecution for insurance or tax fraud, destruction of evidence, or obstruction of justice.
Attorney representing non-profit in merger negotiations with another non-profit entity. During review of client organization’s financial records, attorney found out that the organization had engaged in activities that could jeopardize its non-profit status. The attorney reasonably concluded that the organization’s failure to report these activities to other non-profit would be fraud. Attorney had not represented the non-profit while it engaged in its fraudulent conduct. After telling the Board to notify the other non-profit of the fraud, Attorney withdrew from representing the non-profit, without telling the other non-profit about the fraud, nor did he tell the state tax authorities. Is the attorney subject to discipline for his conduct?
No because the attorney withdrew from representation after informing board about the need to disclose the activities to the other non-profit entity.
A lawyer has a meritorious claim if:
He has a informed himself about the facts of his client’s case and the applicable law, and determined that he can make good faith arguments in support of his client’s position. MR 3.1, comment 2
Can an attorney seek postponement of a proceeding for personal reasons?
Yes; according to comment 1 of MR 3.2.
Can a Judge commend or criticize jurors for their verdict?
No; according to Rule 2.8(c) of the Model Judicial Code.
What is Rule 1.3 of the Model Judicial Code?
This rule prohibits a judge from abusing the prestige of the judicial office to advance the judge’s or others’ personal or economic interests. A judge may provide a reference or letter of recommendation for an individual based on the judge’s personal knowledge. A judge may use official letterhead for a letter of recommendation if (1) the letter indicates that the reference is personal and (2) there is no likelihood that using the letterhead would be reasonably be perceived as an attempt to use the judicial office to exert pressure.
If attorney is admitted to practice on a pro hac vice basis in a neighboring state where she is not licensed, will she be disciplined for violating that state’s rules of ethics?
Yes; under MR 8.5(a) lawyer is subject to discipline in any jurisdiction in which the lawyer is admitted when they violate that jurisdiction’s ethics rules.
A state prosecutor was assigned to a murder case in which defendant confessed. In the confession, defendant also confessed to committing many other crimes over many years, including a murder in another jurisdiction. In investigating the confession, the prosecutor discovered that another individual had been sentenced for the murder in the other jurisdiction. Prosecutor reasonably knew that the convicted person was innocent based on the defendant’s confession. Prosecutor did not tell anyone about this. Was his conduct proper?
No, because he failed to promptly disclose the information regarding the defendant’s confession to a court or the chief prosecutor in the other jurisdiction.
Attorney represents a company that produces chemicals; some of the waste products are highly toxic and reasonably certain to cause substantial bodily harm if disposed improperly. President of the company tells attorney that a new employee mistakenly dumped the waste in the City’s water supply area. Attorney advised president that the company would be civilly and criminally liable. Attorney advised that he immediately report to City authorities. President declined to do so. Attorney told President it was immoral not to say anything, but he still did not disclose. Attorney told President that she was going to withdraw, and report to authorities. That is what she did. Is she subject to discipline?
No because the attorney reasonably believed that the company’s actions would reasonably result in substantial bodily harm.
A state trial court judge was assigned an action that sought to invalidate a testamentary trust as violating the rule against perpetuities. Judge had no prior experience in estate matters, and did not find the briefs submitted by parties to be helpful. Without prior notice to parties, judge consulted another trial judge with extensive experience in estate planning. Judge was careful not to identify the parties or giving any factual information that wasn’t part of the record. The judge then personally decided the matter. She did not inform either party about the consultation, nor did she give them the opportunity to reject or respond. Was her conduct proper?
Yes because the judge personally decided the matter.
Does an attorney who was diagnosed with Parkinson’s, who needs to work from home a couple days per month due to his condition, need to withdraw from representing his corporate client?
No; Rule 1.16(a)(2) requires lawyers to withdraw when his physical or mental condition materially impairs the lawyer’s ability to represent the client. This is not materially limiting, because he is able to work like normal, with the exception of working from home a couple days per month.
Small business owner consulted lawyer for advice on a potential action against her landlord. Business owner had received letter saying she owed $1500 in back rent, and if she didn’t pay in full within 30 days, the landlord would sue. Business owner concerned because the rent would force her to shut down her business. Upon further investigation, lawyer discovered that he already represented the small business owner’s landlord in several other matters. One week after initial consultation, lawyer told small business owner he could not represent her. He then received a call from another client, who was a competitor of the small business owner. Client was worried that the small business owner was invading his territory, and wanted to consult with the lawyer about reporting the small business owner for zoning violations. May the lawyer disclose the small business owner’s rent dispute and potential insolvency to his client?
No; MR 1.18(a) defines prospective client as one who discusses with a lawyer the possibility of forming client-attorney relationship with respect to a matter. regardless of whether the relationship forms, lawyer shall not use or reveal information learned in the initial consultation with anyone.
Lawyer represented a man who had been discharged from his job and was seeking unemployment benefits. After confidential hearing before admin law judge, client’s employment benefits application was denied because of evidence that employee sexually assaulted another employee. Lawyer billed the client, but client refused to pay. Lawyer sent letter demanding payment, and threatened a collection action. Client did not respond to the letter. Client then wrote scathing review of lawyer and review website. Lawyer responded on the review, “I’m sorry for my client, but I can’t invent facts. If you sexually assault someone, there’s not much I can do.” Did lawyer violate his duty of confidentiality?
Yes; Rule 1.16(a) sets forth broad prohibition that lawyer may not reveal any information that relates to the representation of the client without the client’s informed consent - this duty continues even after the client-lawyer relationship has ended (comment 20).
Lawyer representing a client in divorce action discovered that her client had filed five joint income tax returns with his wife that fraudulently understated their income. Lawyer had not been involved in those tax returns. Client’s wife, who was also not involved in the preparation or filing of those returns, was unaware of the fraud. Lawyer analyzed the situation and came to number of conclusions about her duty with respect to this information. What is the correct conclusion?
The underlying fact about the fraud is not protected by either attorney-client privilege or the work-product doctrine. Attorney-client privilege applies to communications between privileged persons made in confidence for the purpose of obtaining or providing legal assistance. The work-product doctrine protects from discovery or disclosure documents or other tangible things, or their unwritten equivalents, prepared by lawyer in anticipation of litigation. The underlying fact that client committed fraud does not fall within either of those protections because it is a fact lawyer learned outside of the relationship with client. Attorney can only disclose client’s crime or fraud if client used lawyer’s service in furtherance of the crime or fraud (exceptions in Rule 1/6(b)).
What are the seven exceptions in MR 1.6(b) that allow lawyer to disclose confidential information?
- To prevent reasonably certain death or substantial bodily harm
- To prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services
- To prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services
- To secure legal advice about the lawyer’s compliance with the Rules
- To establish a claim or defense on behalf of the layer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involve , or to respond to allegations in any proceeding concerning lawyer’s representation of the client
- To comply with other law or court order
- To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
What does Rule 1.8 of the MR prohibit?
It prohibits lawyers from entering into business transaction with clients. The rule applies to even transactions not closely related to the lawyer’s representation of the client and to a lawyer engaged in the sale of goods and services related to lawyer’s practice. This rule also applies to lawyer purchasing property from an estate that lawyer represents. It prohibits accepting an interest in a client’s business as payment for legal services. If lawyer does engage in business transaction with client, it must: (1) be on fair and reasonable terms disclosed to the client; (2) the client must be advised to, and given the opportunity to, seek outside counsel for the matter, and; (3) the lawyer must obtain written informed consent to the basic terms of the deal and lawyer’s role in it.
Wife and husband, both practicing attorneys specializing in medical malpractice, were partners at different law firms. Doctor accused of medical malpractice wanted wife to represent him. Plaintiff was represented by another lawyer at the husband’s firm. Under the Rules, may the wife represent the doctor?
Yes; Rule 1.10 states that a lawyer’s personal interest is not imputed to the lawyer’s firm. Although it is advisable that for the husband’s firm to screen him from the matter.
Lawyer in private law firm was notified that she had been accepted into JAG. She will begin her four-year active-duty commitment in 8 weeks. Lawyer discontinued her work on her pending matters. Lawyer also sent certified mail letters to her clients advising them of her new position and offering to have other lawyers at the firm continue their representation. Under the Rules, did lawyer’s conduct violate here duty of diligence?
Yes; she should not have discontinued her work on pending matters. Rule 1.3 states that unless lawyer’s representation has been terminated, lawyer should pursue matters to their conclusion. To fail to do so would violate her duty of diligence she owes to her clients.
Criminal defense lawyer appointed to represent a client charged with bank robbery. Client insisted that he was innocent and visiting friends out of town on the day of the robbery. Client gave the lawyer names of three people who could supposedly corroborate his alibi. Lawyer contacted two of those persons, and they were not able to corroborate the client’s alibi. Lawyer was unable to reach out to the third person, and left a message for the witness to contact her later. The person never got back to lawyer, and lawyer never made further attempts to contact. Under the Rules, which of the following facts, if true, would be an acceptable reason for lawyer not to make any further effort to contact the third potential witness?
Lawyer learned that the third potential witness was convicted recently of perjury. Comment 1 of Rule 1.3 states that lawyer has professional discretion to determine how best to diligently represent the client. If witness did give support for client’s alibi, wouldn’t look good in court that this witness was convicted of perjury.
Attorney represented defendant in civil rights claim. During investigation, attorney discovered several nude photos of one of plaintiff’s witnesses on private flash drive produced during discovery. Without identifying herself as defendant’s attorney, she gave pictures to local newspaper, which then published the images online. Is attorney subject to discipline under the Rules?
Yes because lawyer may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person (Rule 4.4(a)).
Attorney represented plaintiff in auto accident. Before accident, defendant had been at a friend’s birthday party. Attorney called the friend and identified himself as an ‘officer of the court’ and asked the friend whether the defendant was drinking at the party. Friend was not represented by counsel and had no potential liability for the accident. Friend truthfully told attorney that defendant did not drink at the party. Is attorney subject to discipline under the Rules?
Yes; Under MR 4.3, in dealings on behalf of client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. Here, attorney did not disclose that he was working on behalf of plaintiff.
Lawyer was defending his corporate client from fraud allegations arising out of the sale of several tracts of real estate. Buyer approached the corporate client about purchasing other lots adjacent to those that were the subject of the fraud case. Buyer was particularly concerned about the pending fraud action, which involved a dispute over the precise boundaries of the parcels sold. Although the parcels the buyer was interested in were not the subjects of the fraud action, the findings in the fraud action had the potential to impact their boundaries. The client thought that the lawyer would be well-suited to thoroughly evaluate the real estate opportunity and asked the lawyer to prepare an evaluation of the lots for the buyer to assuage the buyer’s concerns. Do the Rules permit lawyer to prepare an evaluation for the lawyer?
No; the evaluation for the buyer is not compatible with the lawyer’s responsibilities in defending the fraud case. In Rule 2.3, comment 3, states that when preparing an evaluation at a client’s request for delivery to third party, lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken on client’s behalf.
A startup business retained lawyer for general representation. Business hired a consultant to design a logo that it planned to trademark. To save on legal fees, company planned to involve lawyer in logo selection process only after it had narrowed the list to three logos. By way of misdirected email, lawyer say that the preferred logo closely resembled that of a competitor. The competitor had trademarked its logo, and was using it in commerce. Lawyer thus thought it unlikely the startup could use that logo without receiving cease and desist letter from competitor. Do the Rules permit lawyer to advise startup on his concerns?
Yes; Comment 5 to Rule 2.1 states that lawyer is not usually required to give client advice until client asks for it. However, when lawyer knows that a client has proposed a course of action that is likely to result in substantial adverse consequences, Rule 1.4 may require the lawyer to offer advice if client’s course of action is related to the representation. The lawyer is permitted, and arguably required, to advise his client against using this logo.
Divorced lawyer fell behind in child support payments and his ex-wife obtained judgment against him for past-due accounts. To protect some of his personal funds from attachment, lawyer deposited the funds into his client trust account. Did lawyer’s deposit violate his ethical duties under the Rules?
Yes; lawyer can only deposit personal funds into client trust account to pay bank-services charges on that account (Rule 1.15(b)).
Lawyer agreed to represent client in complex litigation. Client agreed to pay lawyer a specified amount of hourly fees and expenses monthly in advance. However, the lawyer was concerned that the costs of discovery would exceed the advance payments. To avoid an overdraft on the client trust account and associated bank fees, lawyer deposited a portion of contingency fee he had earned in another case into client’s trust account. Is the lawyer subject to discipline under the Rules?
Yes; the only purpose that lawyer may commingle his own funds with a client’s in a trust account is to pay bank service charges for the account, and then only in an amount necessary to pay the charges. The Rules do not permit lawyer to commingle funds for the purpose of establishing a cushion of funds to prevent overdrafts.
Attorney who had done legal work for local bank invited bank president to lunch and told her that attorney’s uncle was dying of cancer. Attorney knew that his uncle was personal friends with bank president, and that his uncle had all his accounts at the bank. Attorney asked if the bank was named executor of his uncle’s estate, that the attorney be hired to do any necessary legal work. Attorney really needed the work because he was behind on mortgage payments. Is the attorney subject to discipline under Rules?
No because under Rule 7.3(a), lawyer may solicit employment in person for pecuniary gain if the person solicited is a lawyer, family member, close personal friend, or has a prior professional relationship with the lawyer. Because the local bank was a former client, this in person solicitation is allowed.
Attorney made radio commercial that said “Do you need legal help? I’m Robert Jones and I’m a licensed attorney at law. My initial conference with you is free. Make sure that you are doing everything you can to protect you and your family. Our offices are at at One Main Street and our phone number is 555-555-5555. Call now!” Is the attorney subject to discipline under the Rules?
No; none of the information poses a substantial risk that a reasonable listener would draw an unfounded conclusion about the lawyer’s services, therefore it is not misleading. There is also no false statement of fact or law, and the advertisement gives the firm’s contact information.
Attorney represented criminal defendant in felony murder case. One evening, judge presiding over the case called attorney and said he’d like to speak with defendant alone because judge thought there was something odd in the case. Attorney got defendant and brought him to the judge’s chambers, where judge and defendant spoke alone for several hours. Ultimately a jury found the defendant not guilty. Is attorney subject to discipline under the Rules?
Yes because he brought the defendant to the judge’s chambers. The judge violated the Model Judicial Code by engaging in ex party communications, and none of the exceptions to the Judicial Rule apply here. Lawyer is guilty of misconduct if he knowingly assists a judge in conduct that is a violation of the Rules or other law. (Rule 8.4(f)).
Attorney appointed to represent neo-Nazi who allegedly murdered 4 people. Attorney found potential client repugnant and told court he would not represent him. Additionally, several groups in community protested at the courthouse, and threatened to boycott any lawyer who represented the client. When attorney refused appointment, court pointed out that representing client would not be a financial burden on the attorney, nor would it result in violation of the Rules. Must the attorney accept the appointment?
No; Lawyer may refuse to accept an appointment to represent a client if the lawyer finds the client repugnant.
Model Rule 1.9 - What are the duties that a lawyer owes to former clients?
(1) lawyer shall not represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing
(2) lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which lawyer formerly was associated had previously represented a client and (a) whose interests are materially adverse to that person and; (b) about home the lawyer has acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent in writing.
(3) lawyer who personally formerly represented client or whose present or former firm used to represent client in a matter shall not: (a) use info relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; OR, (b) reveal info relating to representation except as Rules would permit or require with respect to client.
What are lawyer’s duties when acting as a third-party neutral?
Rule 2.4 - A lawyer serving as third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as third-party neutral and one who represents a client.
Can a lawyer who formerly was a mediator for a divorce mediation thereafter represent the ex-wife in a suit to get more child support?
No; According to MR 1.12, the former mediator, judge, adjudicative officer or law clerk may not represent the
When must a lawyer report professional misconduct by another lawyer or judge?
(1) When lawyer knows that another lawyer has committed a violation of the Rules that raises substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall inform the appropriate professional authority.
(2) When lawyer knows that a judge has committed a violation of applicable rules of judicial conduct, that raises substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c) this Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by lawyer or judge when participating in an approved lawyer assistance program.
What must a lawyer do with property that he holds in possession on behalf of clients or third parties in connection with a representation?
(1) Lawyer must hold such property separate from his own property.
(2) Funds must be held in a separate account maintained in the state where lawyer’s office is situated, or elsewhere with consent of client or third person.
(3) Lawyer must keep complete records of the account funds and other property kept by the lawyer and must preserve the records for a period of five years after the termination of representation.
(3) Lawyer may deposit lawyer’s own funds into the client trust account for the sole purpose of paying bank service charges on that account, but only in the amount necessary for that purpose.
(4) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses are incurred.
(5) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as otherwise permitted, lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request but client or third person, shall promptly render full accounting regarding such property .
(6) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, property shall be kept separate until dispute is resolved. Lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
(6) If creditor comes after the trust account, and has a non-frivolous claim against client or third party, lawyer must not release the funds to the client or third party until that credit dispute is settled.
(7) If dispute between lawyer and client about the amount in the fund allocated for lawyer’s fees, the lawyer shall not release the disputed portion of the account until the dispute is settled (preferably through ADR).
What is the standard for determining whether a lawyer has made reasonable efforts to expedite litigation consistent with the interests of the client?
Whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.
What are the limitations to lawyers acting as witnesses?
Rule 3.7 - A lawyer shall not act as advocate at trial in which lawyer is likely to be a necessary witness unless: (a) testimony relates to an uncontested issue, (b) testimony relates to the nature and value of legal services rendered in the case, or; (c) disqualification of the lawyer would work substantial hardship on the client. Lawyer can act as an advocate at trial in which another lawyer from the lawyer’s firm is likely to be called as witness so long as it does not violate 1.7 or 1.9.
(2) Lawyer has burden of showing there is no conflict of interest in the testimony as a witness.
(3) If lawyer determines a conflict exists, then lawyer may get written informed consent from client, if applicable.
When must a lawyer decline to represent a client, or if the representation has begun, withdraw?
Rule 1.16 - Lawyer must decline to represent, or withdraw from representing, if: (a) the representation will result in violation of the Rules or other law; (b) lawyer’s physical or mental condition materially impairs his ability to represent the client, or; (c) the lawyer is discharged.
A lawyer may withdraw from representation if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client
(2) client persists in a course of action involving lawyer’s services that lawyer reasonably believes is criminal or fraudulent
(3) client has used lawyer’s services to perpetuate a crime or fraud
(4) client insists upon taking action that the lawyer considers repugnant
(5) client fails substantially to fulfill an obligation to lawyer and has been given reasonable warning that the lawyer will withdraw if not fulfilled
(6) the representation will result in an unreasonable financial burden on lawyer
(7) other good cause for withdrawal exists.
Rule 1.16
What must lawyer do after withdrawing from representation?
Lawyer must comply with applicable law to give notice to tribunal or obtain permission from tribunal. Lawyer must also take steps to the extent reasonably practicable to protect client’s interests.
What must a prosecutor do if he learns about new, credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit an offense for which he was convicted?
Rule 3.8 - Prosecutor must: (1) promptly disclose to court or authority, and; (2) if the conviction was obtained in prosecutor’s jurisdiction: (a) promptly disclose to the defendant unless court says otherwise, and; (b) undertake further investigation or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that defendant did not commit.
What must a prosecutor do if he learns that there is clear and convincing evidence that defendant was convicted of an offense he did not actually commit?
Rule 3.8 - Prosecutor must remedy the conviction by disclosing evidence to the defendant, requesting court-appointed counsel if defendant is indigent, and where appropriate, notifying the court that the defendant is not guilty. If prosecutor does not take these steps, but should have, he did not violate the Rules.
Rule 4.1 - In the course of representing a client, a lawyer shall not knowingly:
(1) false statements of fact or law to a third party
(2) fail to disclose a material fact when disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client, unless disclosure prohibited by confidentiality.
(3) make partially true statements or omit material facts in statements made to third parties.
If a lawyer is acting as third-party neutral for parties, what are the duties he owes to the body presiding over the ADR?
(1) If arbitration or other ADR before tribunal - lawyer shall not knowingly make a false statement of material fact or law to the tribunal, or fail to correct a false statement; lawyer shall not fail to disclose legal authority in the controlling jurisdiction known to the lawyer that is directly adverse to client, and not disclosed by opposing counsel; lawyer shall not offer evidence that lawyer knows to be false; if lawyer reasonably believes that the evidence presented by client or witness is false, lawyer MAY choose to refuse to offer that evidence. (Rule 3.3). Lawyer’s duties extend through the conclusion of the proceeding, and apply even if compliance would mean a violation of Rule 1.6.
(2) If ADR is before a non-tribunal, then the lawyer shall not knowingly make a false statement of material fact or law to a third person, or fail to disclose a material fact when disclosure is necessary to avoid assisting criminal or fraudulent act by a client.
What must a lawyer do if he comes to know that his client presented false evidence during a deposition, or in other stages of litigation?
Lawyer must take reasonable remedial measures. (Rule 3.3, comment 1). These reasonable remedial measures may include, remonstrating with the client privately, advising client of lawyer’s duty of candor towards the court, and cooperate with client to either withdraw, or correct the false statement. If withdrawal not allowed, or cannot correct the false statement, lawyer must make such disclosure to the tribunal as is reasonably necessary to remedy the situation. (Rule 3.3, comment 10).
For the purposes of candor towards the court, when is a lawyer making a statement on his own knowledge?
When making a statement in open court, or in an affidavit by the lawyer. In these circumstances, a lawyer shall only make these statements when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. (Rule 3.3, comment 3)
Can a lawyer knowingly present false evidence to a tribunal for the purpose of establishing its falsity?
Yes - Rule 3.3, comment 5
What should a lawyer do if he knows that his client, or a witness he is going to call at court, is going to testify falsely or urges lawyer to present false evidence?
The lawyer may choose to withdraw, or if he continues to represent, the lawyer MUST refuse to present the false evidence. (Rule 3.3, comment 6)
What should a lawyer do if he reasonably believes that the evidence is false?
The lawyer should resolve his doubt by investigating to avoid presenting a false piece of evidence to court. (Rule 3.3, comment 8).
Under the Rules, can a lawyer refuse to put his client, a criminal defendant, on the witness stand, if he reasonably believes that the client is going to present a false statement of material fact or law?
No - the Rules do not permit criminal defense lawyers to refuse to offer criminal defendants’ testimonies on the basis of a reasonable belief. Unless he knows that the testimony is false, the lawyer must let the defendant testify. (Rule 3.3, comment 9).
When has a proceeding concluded within the meaning of Rule 3.3?
When a final judgment has been affirmed on appeal, or the time for review has passed. (Comment 13).
If lawyer knows his client is going to, or has made, a false statement of material fact before a tribunal, when is the appropriate time for lawyer to seek permission to withdraw?
When Lawyer’s compliance with duty to candor towards the court results in an extreme deterioration of the client-lawyer relationship such that lawyer can no longer competently represent the client.
Can a former law clerk for a judge begin negotiating for employment with any person who is involved as a party or as lawyer for a party in a matter in which the clerk participated personally and substantially?
Yes; only after the clerk receives permission from the judge. (Rule 1.12)
