Pg 20

Question 1

What is the duty of candour to the court and fairness to adversary?

Answer 1

Candour towards the tribunal

Question 2

Duty of candour to the court also applies in what situation?

Answer 2

When the attorney is representing a client in an ancillary proceeding under the tribunal’s authority. I.e. deposition

Question 3

What kind of things are included in the duty of candor?

Answer 3

Truthfulness in statements to others, no lying to the court, no hiding the ball, no letting a client or a witness lie to the court

Question 4

Attorneys have a special obligation to protect the tribunal from what?

Answer 4

Criminal or fraudulent conduct that undermines the integrity of the judicial process. I.e. bribing, intimidating, destroying evidence

Question 5

When an attorney knows his client will give or has given false testimony, what must he do?

Answer 5

Counsel the client not to, attempt to withdraw, and then tell the judge if they attempt to withdraw is unsuccessful

Question 6

What is included in a tribunal?

Answer 6

Court, arbitrators, legislative bodies, administrative agencies. Anything that has a neutral officer rendering a binding legal judgement after presentation of evidence or legal argument by the parties

Question 7

What are the three major duties under MR 3.3 related to the duty of candour that an attorney shall not knowingly do?

Answer 7

– Make or fail to correct a false statement of material fact or law to the tribunal
– knowingly fail to disclose legal authority in the controlling jurisdiction
– offer evidence that he knows is false

Question 8

If an attorney finds out he made a false material statement to a tribunal after the fact, what must he do?

Answer 8

Take reasonable remedial measures to disclose it to the tribunal or fix it. If it isn’t material, no problem

Question 9

In order for an attorney to be sanctioned under the duty of candor, is it enough if he just suspects that a falsity has occurred?

Answer 9

No, he needs actual knowledge of the falsity, but this can be inferred from circumstances. Reasonable belief that information is false is not enough. If the attorney, after reasonable diligence, believes the information is true, he can present it

Question 10

What is the rule under the duty of candour for attorneys not being able to knowingly fail to disclose legal authority?

Answer 10

The authority must be controlling in the jurisdiction, directly adverse to the position of the client, and not disclosed/cited by the opposing counsel

Question 11

When does the duty not to knowingly fail to disclose legal authority in the controlling jurisdiction begin?

Answer 11

It doesn’t begin until the other side misses the controlling authority. Attorneys do not have to disclose this authority in their own moving papers, but they must cite adverse authority in reply if the other side doesn’t

Question 12

If an attorney or his client or a witness called by the attorney offers material evidence that the attorney finds out is false, what must the attorney do?

Answer 12

He must take reasonable remedial measures, which can include if necessary disclosure to the tribunal

Question 13

When the duty of candour to the tribunal and the duty of confidentiality come into conflict, which one wins?

Answer 13

Duty of candour

Question 14

In an ex parte proceeding, what is the duty of the attorney?

Answer 14

To inform the tribunal of all material relevant facts known to him that will allow the tribunal to make an informed decision, even if the facts are adverse

Question 15

What is the reasoning for the rules about ex parte proceedings?

Answer 15

Because these are one-sided proceedings, there isn’t a balance of representation by opposing advocates, so the absent party deserves just consideration through the disclosure of all material facts that are reasonably necessary to make an informed decision

Question 16

If an attorney finds out that his client gave false information in a deposition, is that included under the duty of candour to the court?

Answer 16

Yes, so he would have a duty to take reasonable remedial measures

Question 17

Is it OK for an attorney to make legal arguments based on a knowingly false representation of the law?

Answer 17

No

Question 18

If an attorney reasonably believes that testimony or proof is false, what can he do?

Answer 18

Refuse to offer it

Question 19

If an attorney gets information about his client’s intention to commit perjury immediately before taking the witness stand, what can the attorney do?

Answer 19

He probably cannot withdraw because it will cause hardship to the defendant. He must first try to convince the client not to perjure himself, should warn the client of adverse consequences, and if that is not successful, he can reveal the information to the court if that is the only option

Question 20

If an attorney later finds out the evidence he offered was false, what is involved in the remedial measures that the attorney needs to take?

Answer 20

First he should talk to the client confidentially and advise the client of the duty of candour and attempt to get his cooperation through withdrawal or correction of the false statement or evidence. If that fails, the attorney must disclose to the tribunal whatever is reasonably necessary to remedy it. Tribunal then decides what to do

Question 21

If an attorney helps an accident victim get $2 million in damages for neck injuries, and once the appeal period lapses the attorney sees the client on the ski slopes and asks her about her injury, and she says she paid a doctor to lie at trial, what must the attorney do?

Answer 21

Because the duty to disclose to the tribunal ends when the proceeding ends (aka at the end of the appeal period), revealing it now would be a violation of the duty of confidentiality

Question 22

When does the duty of candour to the court end?

Answer 22

Once the appeal period is over

Question 23

Examples of conduct that an attorney has a special obligation to protect the tribunal against?

Answer 23

Bribing, intimidating, unlawfully communicating with a witness/juror/court official, unlawfully destroying or concealing docs or evidence, not disclosing information to the tribunal when required to

Question 24

When must an attorney seek withdrawal in situations that there has been a duty of candour issue?

Answer 24

If there has been such an extreme deterioration of the attorney-client relationship that the attorney can’t competently represent the client any longer

Question 25

What is the rule for candour in bar applications?

Answer 25

Applicants must be honest in statements made to the bar

Question 26

What is the MR 4.1 rule about truthfulness in statements to third parties?

Answer 26

While representing a client, attorneys shall not knowingly make false statements of a material fact or law to a third person or fail to disclose material facts when necessary to avoid a criminal or fraudulent act by a client