Other Duties to Non-Clients Flashcards
Access to Evidence
Don’t obstruct, alter, or hide evidence from opposing counsel or others
Don’t advise a witness to “disappear”
You can keep evidence around for a time, like to conduct tests, but don’t doctor it
Example: client is crim D and gives you gun he used in murder. You get subpoena’d for it. You must give it up.
Hypo: If your investigator retrieves the gun and examines it, must she then be compelled to produce it to authorities? Yes. Once you interfere, you’re compelled to respond to the subpoena
Paying Witnesses
The following are permitted, but can’t be contingent on content or outcome:
- Reasonable expenses
- Loss of time
- Expert fees (can’t be contingent on content of testimony)
Using Threats to Gain Advantage in Civil Case
Can’t threaten criminal, administrative, or disciplinary charges to gain an advantage.
You can still report their unethical conduct, but can’t use the threat as an extortion to get a leg up.
Special Duties of Prosecutors
Prosecutors must:
1) Have probable cause to prosecute
2) Must respect accused’s right to counsel
3) Must protect D’s pretrial rights
4) Must disclose mitigating evidence during case, in a timely fashion. This exceeds the constitutional requirement
5) Must disclose new, credible, and material evidence of innocence following conviction
Trial Publicity
Can’t make public statements that would materially prejudice case
Can reply to protect client from prejudice initiated by someone else
Truthfulness in Statements to Others
- No false statements of material fact
- Must disclose facts to avoid assisting client in crime or fraud, subject to confidentiality
Communicating with Represented Person
Can’t speak about matter unless either:
- Person’s counsel consents
- Authorized by law or court order
In dealing with org, usually need their counsel’s permission to do interviews. What can be imputed to the org looks a lot like evidence law with SOPO.
Communicating with Unrepresented Person
- Can’t act disinterested
- If person and client have conflicting interests, can’t give person legal advice except to obtain their own legal counsel.
- Never seek privileged info from unrepped people
Acting as 3rd Party Neutral
You must inform all non-repped parties that you are not representing them. You gotta clarify that you are a third party neutral (like a mediator).
Acting as Advocate in Representative Capacity in Legislature/Administrative Proceedings
Must be clear about what your posture is in advocating for a party or some entity. Basically if you are a lobbyist you gotta let people know who you’re working for
Receiving Electronic Info Sent by Mistake
When you receive this, you must notify sender.
CA: applies only to privileged writing or work product. Also requires lawyer to stop reading and you must then notify the sender!
No Heavy Handed Tactics
Don’t use means with no substantial purpose other than to embarrass, delay, or burden someone.
CA did not adopt this rule because they think it’s too broad or would be interpreted inconsistently.
