MRPC 1.6 and 3.3: CONFIDENTIALITY OF INFORMATION

Question 1

What are the different policy perspectives re: Rule 1.6 that we studied in class?

Answer 1

Pepper: Regulated, liberal democracy, “first class citizenship” depends on access to the law and lawyers
Equal access to the law
+ Requires access to lawyers to interpret
+ Autonomy → Access → Broad Confidentiality

Luban: Self-protection
+ Autonomy is not the only value (it’s great) because when you give clients autonomy they may use it to do bad things.
+ There should be exceptions. Exceptions should be mandatory.

Question 2

True or False: Rules 1.6, 1.16 and 3.3 are intertwined

Answer 2

True.
IF YOU TALK ABOUT 1.6, YOU MUST MENTION 3.3 AND 1.16
Rule 3.3: Candor towards Tribunal
Rule 1.16: Declining or Terminating Representation

Question 3

What is Rule 1.6(a) and is it mandatory?

Answer 3

If Lawyer-Client Relationship exists, go to Rule 1.6(a): Mandatory

Never reveal information relating to the representation of a client UNLESS
+ client gives informed consent (permissive);
+ disclosure is impliedly authorized in order to carry out the representation (narrow circumstances); OR
+ disclosure is permitted by (b) exceptions

Question 4

Why is Rule 1.6(a) so broad?

Answer 4

Why such a broad rule?
[2] In order to help clients, we need to know their private info. Clients are more apt to share if they are assured that there is confidentiality

Loyalty to clients to keep affairs private → trust circle created and strengthened
More information provided by client → better able to get the job done

Competitive edge for non-lawyer professionals → accountants, therapists, police officers don’t have this strict of a confidentiality policy

Lawyers know that clients will follow their advice

Question 5

True or false: Privilege and confidentiality are the same according to MRPC

Answer 5

False
[3) Privilege and Confidentiality are two different things → do not use these terms interchangeably

+ Attorney Client privilege: work product and doctrine
+ Confidentiality: established in professional ethics

1.6(a) Applies not only to matters communicated in confidence by the client AND all information relating the representation, no matter its source

Question 6

In relation to Rule 1.6(a), are hypotheticals from one lawyer to another lawyer permissive?

Answer 6

Hypotheticals are permissible SO LONG AS no reasonable likelihood that listener will be able to ascertain the identity of client or situation

Question 7

How do we know if the information is related to the representation of the client?

Answer 7

Related to the representation has two tests:
1) “But for” test – Majority — VERY BROAD
But for the attorney-client relationship, the lawyer would not have known the information.
2) “Subject matter” – Minority
Must know the subject matter of the representation
Unless you know it relates to the subject matter of the representation, then you cannot answer.

Question 8

Give an example of each test to determine if client information is related to representation of the client under the 1.6(a)

Answer 8

1) But for test
Client mentions to his divorce lawyer while lawyer is making coffee, that he made some bad investments and wants to sue his financial planner → this is confidential under but for test, even if info is unrelated to reason for hiring representation

2) Subject matter
Problem 2-2 on p.65: because we don’t know if the representation relates to parking meters, we cannot say definitively whether the information would be confidential

Question 9

What are disclosure exceptions under 1.6(a)?

Answer 9

(a) informed consent: if the client agrees after knowing the explanation behind the disclosure, the advantages and disadvantages, and alternatives
Rule 1.0(e): advantages, disadvantages, alternatives

(a) implied authority: [5) except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation.

[4) Prohibition applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. Hypos are OK IF there is no reasonable likelihood where listener could figure out the identity of client or situation

[5] Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to client of the firm, UNLESS the client has instructed that particular information be confined to specific lawyers.

Question 10

What does Rule 1.6(b) say?

Answer 10

If disclosure is related to representation, move to 1.6(b)’s Exceptions to Rule 1.6(a)

DO NOT EVEN CONSIDER THE EXCEPTIONS UNTIL YOU HAVE DETERMINED THAT CONFIDENTIALITY ATTACHES

Question 11

True or false: Colorado Rule 1.6 is much narrower than MRPC 1.6(b)(1)

Answer 11

False
CO Rule 1.6: Includes ANY crime, not just violent/GBH
\+ Oldest way that CO deviates from ABA
\+ Broader exception
\+ Only applies to future-looking crime

Question 12

What does 1.6(b)(1) exception provide? Give an example.

Answer 12

1.6(b)(1) – James Bond Caveat:
A lawyer may reveal information related to the representation to the extent the lawyer reasonably believes to be necessary to prevent reasonably certain death or substantial bodily harm:
+ Applies to all exceptions

Question 13

What do 1.6(b)(2) and (3) address? Are they mandatory?

Answer 13

1.6(b)(2) and (b)(3) ENRON exceptions → NOT MANDATORY
+ ABA additions: Allows lawyers to make exceptions so legislature doesn’t get involved
(2) To prevent (future looking)
Crime or fraud
Reasonably certain
Furtherance of which client has used or is using lawyer’s service
(3) To prevent, mitigate, or rectify (includes past conduct)
Crime or fraud

Reasonably certain
+ To result in substantial injury to the financial interests or property
+ Furtherance of which the client has used or is using the lawyer’s services

DOES NOT APPLY when person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense

Question 14

What does Rule 1.6(b)(4) address re: confidentiality exceptions?

Answer 14

1.6 (b)(4) Secure legal advice about whether you are complying with the Rules

Lawyer seeks counsel under preamble terms (client/lawyer relationship) to help with an ethical dilemma. Client finds out that you sought legal advice → tries to sue you

Cannot breach client info with a legal ethics expert, BUT you can consult a legal ethics expert about a specific rule.

Question 15

Rule 1.6(b)(5) has two parts and four exceptions to confidentiality. Explain them in relation to the Meyerhofer case.

Answer 15

Rule 1.6(b)(5) 2 parts, 4 exceptions
Part 1: Offensive
Exception 1: To establish a claim on behalf of the lawyer in a controversy between the attorney and the client
Exception 2: When you want to sue your client
[8] You could not sue without this rule to collect unpaid fees because you would be barred from discussing the content of the representation, even to a court

Part 2: Defensive
Exception 3: To establish a defense on behalf of the lawyer in a controversy between the lawyer and the client
Client accuses you of malpractice → you want to file an answer
Exception 4: To establish a defense to a civil claim or criminal charge against the lawyer based upon conduct in which the client was involved
+ NOT between the lawyer and client, between lawyer and state
Ex: US attorney charges client with crime, you are charged with aiding and abetting → how else would you defend yourself?
Exception 5: To respond to allegations in any proceeding concerning the lawyer’s representation of the client
+ Disciplinary complaint → protecting yourself
+ Violations of the rule’s proceedings

Question 16

How does the Meyerhofer case incorporate Rule 1.6(b)(5) regarding disclosure?

Answer 16

Meyerhofer
+ Can lawyers reveal client confidences to defend themselves against actions of wrongful conduct? YES
+ Goldberg → 30-page interoffice memo, voicing his concerns about recent IPO representation, then leaves the firm
+ Goldberg still charged, discloses information during SEC investigation
+ Charged w.violations of Canons 4 and 9
4) Preserving client confidentiality
9) Avoiding appearance of professional impropriety
BUT Goldberg applied MRPC 1.6(b)(5): not acting in bad faith b/c lawyers have a right of self-defense, which permits them to disclose confidential information, even under circumstances that might otherwise give an appearance of professional impropriety
AND this prevents Goldberg from representing a party in action against former client if circumstances give the appearance that there’s a violation of duty of confidentiality with respect to former client’s confidential information

Was this disclosed to a reasonably necessary level/appropriate? 30-pages, extensive detail → TMI or great evidence in his defense?

Question 17

What is Rule 1.6(b)(6) exception? Is it mandatory?

Answer 17

Rule 1.6(b)(6) To comply with other law/court order
Lawyer may reveal information… discretionary
+ Discretionary under the law, however but lawyer can be held in contempt of court if a judge issues an order
+ Most lawyers will not commit contempt of court, comply with the judge

Rare considerations:
Grave injustice to client/irreparable harm
How valuable is the client?
Many states have mandatory disclosure re: domestic violence/child abuse

Question 18

What is Rule 1.6(b)(7) re: Confidentiality and Disclosures? Is it common? In what scenario would this be applied?

Answer 18

Rule 1.6(b)(7) To detect and resolve conflicts of interest: mobility focused
+ Conduct must be reasonable
+ You can release conflict checking info, (most likely to another firm), unless that info is prejudicial to one of your clients

Factual examples when conflict checking CANNOT be revealed
+ Nature of your work → You’re a big shot divorce lawyer/criminal prosecutor/bankruptcy attorney
+ Rare and temporal
+ Watch for the timeline WHEN lawyer will reveal

Question 19

How does a lawyer determine if a lawyer has made reasonable efforts to prevent inadvertent or unauthorized disclosure (or unauthorized access to) client information relating to a client under Rule 1.6(c)?

Give an example

Answer 19

Rule 1.6(c): A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

[18] [19] Not a violation IF (rule does not impose strict liability): “reasonable regime” – you just have to conduct “reasonable efforts” → even if lawyer was hacked, no liability

Factors to determine reasonableness:
+ Sensitivity of the information: Client identity is generally sensitive, but NOT ALWAYS
+ Likelihood of disclosure if additional safeguards are not employed: Depends on if the information will be in the public domain
+ The cost of employing additional safeguards
+ The difficulty of implementing the safeguards
+ The extent to which the safeguards adversely affect the lawyer’s ability to represent clients
+ Clients can require their lawyers to implement special security measures beyond this rule
+ Clients can give informed consent to use communication otherwise prohibited by the rule
+ This rule doesn’t cover federal laws that oversee data privacy

Ex: Should all attorney-client emails be encrypted? Depends on the information sensitivity. What is the cost of employing the encryption? $0, so it’s reasonable from a cost-effective strategy. But what about opportunity cost? Implementing a cyber-security system for all employees and clients may cost you future business

Question 20

Rule 1.6 Hypo: Lawyer on vacation out of the country gets stopped at border control en route back: “Do you have a smart device?” Yes. “Please hand it over.” OK. “Please unlock your device.” –> what should he do?

Answer 20

1) If you do not have a passcode on your phone, you can be subject to litigation under Rule 1.6(c)
2) 1.6(a) Is it a work product (privilege) that’s being reviewed or is it confidential information? Privilege and confidentiality are two different things, privilege is not a mandatory thing whereas confidentiality is. Put a clause in your client agreement that indicates if travel for counsel occurs, certain confidential information may be scanned at borders, thus making the breach allowed.
3) 1.6 (b)(5) if the client sues you for malpractice, use the self-defense exception. You didn’t have an option crossing borders back into the U.S.
4) 1.6 (c) Assuming you’re encrypting all important documents, a simple scan of emails on your phone wouldn’t be an issue of disclosure. 2-factor authentication on all work devices.
5) Do not allow employees to take their work equipment on vacation OR require all employees to keep a separate device for travel that limits what’s included (“burner phone”)

Question 21

If none of the 1.6(b) exceptions apply, and 1.6(c) also doesn’t apply, are there any MANDATORY exceptions to disclosure of confidential information?

Answer 21

Rule 3.3 will involve interplay of 1.6 → If 3.3(a) and 3.3(b), you’re back to 1.6 (a) and (c) re: confidentiality

Question 22

What is Rule 3.3(a) and is it Mandatory?

Answer 22

Rule 3.3: Candor Towards the Tribunal (MANDATORY)

(a) A lawyer SHALL NOT knowingly:
(1) make a false statement of fact or law in a tribunal/hearing, or fail to correct a false statement of material fact or law

(2) fail to disclose to the tribunal 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 to be false:
If lawyer offers false material evidence, and the lawyer comes to know it’s false, reasonable remedial measures must be taken to correct.

Question 23

Explain Rule 3.3(b) in relation to confidentiality and candor with the tribunal. Is it mandatory?

Answer 23

3.3 (b) If a lawyer representing a client knows that a person intends to engage is engaging or has engaged in criminal or fraudulent conduct related to the proceedings shall (MANDATORY) take reasonable remedial measures, including, if necessary disclosure to the tribunal

+ If you come to know of the falsehood before you file, you can refuse to file, UNLESS your client is a defendant in a criminal trial
+ NO criminal attorney can stop his client from testifying at his own case → protected by Constitution
+ You also cannot stop your client from committing perjury, but you can take reasonable remedial measures after the perjury has been committed.
+ Obligation to correct the court record generally trumps the confidentiality obligation to the court

Question 24

How did Nix v. Whiteside relate to Rule 3.3(b)?

Answer 24

Nix v Whiteside
1.0(f) How do we define “knowingly”?
+ Actual knowledge of the fact in question
+ May be inferred from circumstances
Here, the client didn’t say for certain that he did or did not see a gun → “If I don’t say I saw a gun I’m dead”
We can infer knowledge, thus the lawyer knew

3.3(b) application comments
[7] (a) and (b) apply to all lawyers, including defense counsel in criminal cases
[11] If the lawyer cannot get the client to correct false testimony that has already been given AND the lawyer cannot withdraw OR if withdrawal will not remedy the situation, lawyer must disclose perjury.
[13] If the lawyer finds out about false information AFTER jury verdict, there is an imposed time limit on obligation to rectify.

Question 25

What are the differences between 3.3(a) and (b)?

Answer 25

Differences between 3.3 (a) and (b):

(a) is much broader in scope
(b) is the type of evidence
(b) gives more room for discretion

Question 26

What does Rule 3.3(c) say about confidentiality and disclosures of client information?

Answer 26

Rule 3.3(c): Duties in (a) and (b) continue until conclusion of proceedings → no appeals left
+ Once proceedings conclude, you are off the hook
+ Clemency in death penalty case → outside conclusion of proceedings

Question 27

What does Rule 3.3(d) say in ex parte proceedings?

Answer 27

Rule 3.3(d) in ex parte proceeding, must provide ALL material facts, since the other side isn’t there

Ex parte → not the adversary system, only one side is represented
“Judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and and all that the lawyer reasonably believes are necessary to an informed decision”

Question 28

What were the reasons why Freedman and Smith said Rule 3.3 should be discretionary?

Answer 28

Dissonance in lawyer’s duty → trilemma
1) Duty of Counsel → seek all the relevant facts
2) Duty of Confidentiality → Clients need to trust their lawyers with confidential info
–> These two are bound together
3) Be honest with the court
This one has to give if you can’t meet all three

+ You can explain all that you want to your client that perjury is bad and can result in more punishment, doesn’t mean client will follow your directions
+ Withdrawal w/out prejudice to client is very difficult +
+ Domino effect of withdrawals
+ “Red flag” if you withdraw
+ Lawyers should make good faith efforts to avoid perjury

Question 29

How does Rule 1.6 coincide with Rule 1.18?

Answer 29

[1] Rule 1.6 governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer’s representation of the client.
+ See Rule 1.18 for the lawyer’s duties with respect to information provided to the lawyer by a prospective client

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

Question 30

How does Rule 1.6 coincide with Rules 1.8 and 1.9?

Answer 30

Rule 1.6 governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer’s representation of the client.

See Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client
See Rules 1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients.

Question 31

True or false: The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

Answer 31

True. Rule 1.6 [2]
A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. This contributes to the trust that is the hallmark of the client-lawyer relationship.

The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct.

Question 32

Can lawyers make disclosures that in themselves do not reveal protected client information but leads to the discovery of such information by a third person?

Answer 32

No. Rule 1.6(a)[4]
Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Question 33

Can a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims?

Answer 33

Yes. Rule 1.6(b)(1) [6]
Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.

Question 34

How does Rule 1.6(b)(2) interact with Rule 1.0?

Answer 34

Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud, as defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer’s services.

Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct.

Question 35

How does Rule 1.6 interact with 1.2(d), 1.16, and 1.13?

Answer 35

Rule 1.6 [7]
Although paragraph (b)(2) does not require the lawyer to reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2(d).

See also Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the client in such circumstances

See also Rule 1.13(c), which permits the lawyer, where the client is an organization, to reveal information relating to the representation in limited circumstances.

Question 36

Does Rule 1.6(b)(3) apply when a person commits a crime and then hires a lawyer to represent them in the matter?

Answer 36

[8] Paragraph (b)(3) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.

Question 37

Can a lawyer seek advice on how to proceed on a sensitive matter and not violate Rule 1.6?

Answer 37

Yes. [9] A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these Rules.

In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct.

Question 38

If a lawyer needs to disclose client information to defend himself against a claim, must he wait until the action has commenced before preparing his defense?

Answer 38

No. Rule 1.6(b)(5)

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense.

The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together.

The lawyer’s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

Question 39

How do Rules 1.7 and 1.17 interact?

Answer 39

[13] Paragraph (b)(7) recognizes that lawyers in different firms may need to disclose limited information to each other to detect and resolve conflicts of interest, such as when a lawyer is considering an association with another firm, two or more firms are considering a merger, or a lawyer is considering the purchase of a law practice.

See Rule 1.17, Comment [7]. Under these circumstances, lawyers and law firms are permitted to disclose limited information, but only once substantive discussions regarding the new relationship have occurred.

Any such disclosure should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated.

Even this limited information, however, should be disclosed only to the extent reasonably necessary to detect and resolve conflicts of interest that might arise from the possible new relationship.

Moreover, the disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced; that a person has consulted a lawyer about the possibility of divorce before the person’s intentions are known to the person’s spouse; or that a person has consulted a lawyer about a criminal investigation that has not led to a public charge).

Under those circumstances, paragraph (a) prohibits disclosure unless the client or former client gives informed consent. A lawyer’s fiduciary duty to the lawyer’s firm may also govern a lawyer’s conduct when exploring an association with another firm and is beyond the scope of these Rules.

Question 40

If a lawyer believes he must disclose client information reasonably necessary, how could she go about figuring out what that means?

Answer 40

[16] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.

Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.

If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

Question 41

In exercising a lawyer’s right to reveal confidential information under 1.6(b), what factors should she consider before revealing?

Is a lawyer’s decision not to disclose a violation of Rule 1.6(b)?

Answer 41

[17] In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in question.

A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules.

Question 42

What is the policy behind Rule 3.3(a)(1)?

Answer 42

Rule 3.3: Candor Towards the Tribunal (MANDATORY)
(a) A lawyer SHALL NOT knowingly:
(1) make a false statement of fact or law in a tribunal/hearing, or fail to correct a false statement of material fact or law
+ Don’t want to waste time
+ Don’t want to prejudice your client

Question 43

How is knowledge of your court helpful regarding Rule 3.3(a)(2)?

Answer 43

Rule 3.3: Candor Towards the Tribunal (MANDATORY)

(a) A lawyer SHALL NOT knowingly:
(2) fail to disclose to the tribunal 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

+ Know the variations of state/federal courts and what’s controlling
+ Are SCOTUS cases controlling? Depends on Constitutional issue
Ex: You or opposing counsel fails under 3.3(a)(2)… what do you do?
+ Clarify/distinction of matter of law
+ Bury it

Question 44

If a lawyer offers false material evidence to a court/tribunal, then the lawyer finds out the evidence is false, what can he do?

Answer 44

Rule 3.3(a)(3)
a) A lawyer SHALL NOT knowingly:
(3) offer evidence that the lawyer knows to be false:
+ If lawyer offers false material evidence, and the lawyer comes to know it’s false, reasonable remedial measures must be taken to correct.

Ex: Client lies to you