Pg 21 Flashcards
What are some things that are not considered material facts for the duty of candor?
- estimate of a price
- value placed on the subject of a transaction
- parties’ intentions about acceptable settlement of claim
When an attorney is bargaining for settlement of a claim, is it OK to only make selective disclosure of things?
Yes, that is an inherent aspect of bargaining. While negotiators cannot intentionally misrepresent material facts, they can misrepresent the value their clients place on an item or settlement intentions
While you are negotiating a settlement, is it OK to use evasive tactics to avoid answering a question?
Yes, but if you do respond you have to be honest
Is posturing or puffing during a settlement negotiation considered to be a false statement?
No
What is MR 3.2 regarding expediting litigation?
Attorneys must make reasonable efforts to expedite litigation
What is the test for whether or not an attorney is living up to MR 3.2 regarding expediting litigation?
Whether a competent attorney acting in good faith would regard the course of action as having some substantial purpose besides delay
When does the duty of candour to the tribunal end?
At the conclusion of the proceeding, which means until the case has been resolved on appeal or the time for appeal has passed
If you as an attorney find out that your client killed the victim one year after your client is acquitted, can you disclose that information?
No because the duty of candour to the tribunal is over
If the opposing side or the court make a mistake regarding a major error, and the attorney notices it, what must the attorney do?
Must inform the other
If an attorney knows something, is it assumed that the client does as well?
Yes, the attorney’s knowledge is imputed to the client, so if the attorney knows something but doesn’t tell his client, the client is considered to have known about it
What are the things that an attorney cannot do under MR 3.4 fairness to opposing party or counsel?
– Unlawfully obstruct other parties’ access to evidence
– unlawfully alter/destroy/conceal/falsify a document of evidentiary value
- counsel or assist client in falsely testifying or doing anything above
– make frivolous discovery requests
– fail to make reasonably diligent efforts to comply with proper discovery requests
– Allude in trial to any matter the attorney doesn’t reasonably believe is relevant or supported by evidence
– disobey tribunal rules
– assert personal knowledge of facts in issue or state personal opinion about things like the justness of the cause, credibility of the witness, culpability of the litigant, or guilt or innocence of the accused
– request anyone to refrain from giving relevant information to the other party
– give unlawful incentives to witnesses
When an attorney talks to a client or a witness about their testimony that they will give, what should be the goal?
To extract facts, not put facts into the witness
Why can a prosecutor not give a closing argument that says, “I have never met a more guilty human.“?
Because attorneys are not allowed to assert their personal opinions about the credibility or culpability or guilt or innocence of the accused
Attorney is permitted to request someone besides the client to not give relevant information to the other party when what?
They are a relative, employee, or agent of the client, and the attorney reasonably believes his interests will not be adversely affected by not giving the information
What can an attorney give to a lay witness?
He can pay the witness’ expenses involved in testifying, but cannot pay the witness to testify
