Pg 20 Flashcards
What is the duty of candour to the court and fairness to adversary?
Candour towards the tribunal
Duty of candour to the court also applies in what situation?
When the attorney is representing a client in an ancillary proceeding under the tribunal’s authority. I.e. deposition
What kind of things are included in the duty of candor?
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
Attorneys have a special obligation to protect the tribunal from what?
Criminal or fraudulent conduct that undermines the integrity of the judicial process. I.e. bribing, intimidating, destroying evidence
When an attorney knows his client will give or has given false testimony, what must he do?
Counsel the client not to, attempt to withdraw, and then tell the judge if they attempt to withdraw is unsuccessful
What is included in a tribunal?
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
What are the three major duties under MR 3.3 related to the duty of candour that an attorney shall not knowingly do?
– 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
If an attorney finds out he made a false material statement to a tribunal after the fact, what must he do?
Take reasonable remedial measures to disclose it to the tribunal or fix it. If it isn’t material, no problem
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?
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
What is the rule under the duty of candour for attorneys not being able to knowingly fail to disclose legal authority?
The authority must be controlling in the jurisdiction, directly adverse to the position of the client, and not disclosed/cited by the opposing counsel
When does the duty not to knowingly fail to disclose legal authority in the controlling jurisdiction begin?
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
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?
He must take reasonable remedial measures, which can include if necessary disclosure to the tribunal
When the duty of candour to the tribunal and the duty of confidentiality come into conflict, which one wins?
Duty of candour
In an ex parte proceeding, what is the duty of the attorney?
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
What is the reasoning for the rules about ex parte proceedings?
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
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?
Yes, so he would have a duty to take reasonable remedial measures
Is it OK for an attorney to make legal arguments based on a knowingly false representation of the law?
No
If an attorney reasonably believes that testimony or proof is false, what can he do?
Refuse to offer it
If an attorney gets information about his client’s intention to commit perjury immediately before taking the witness stand, what can the attorney do?
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
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?
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
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?
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
When does the duty of candour to the court end?
Once the appeal period is over
Examples of conduct that an attorney has a special obligation to protect the tribunal against?
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
When must an attorney seek withdrawal in situations that there has been a duty of candour issue?
If there has been such an extreme deterioration of the attorney-client relationship that the attorney can’t competently represent the client any longer
