Pg 22

Question 1

If an attorney multiplies the proceedings in any case unreasonably or vexatiously, he can be ordered to do what?

Answer 1

Personally pay the excess costs and the attorney fees of the victim

Question 2

What is required for a malicious prosecution claim?

Answer 2

– The initiation or continuation of the underlying action
– lack of probable cause
– malice
– favourable termination of the underlying action

Question 3

What are the modern and subjective views for the lack of probable cause that is required as an element of a malicious prosecution claim?

Answer 3

– Modern view: objective standard. Would a reasonable attorney have pursued the claim?
– Subjective standard: ask if the attorney knew the claim was frivolous

Question 4

What is required for the malice element for malicious prosecution?

Answer 4

Proof of actual ill will or that the claim was commenced for improper purposes. This can be inferred from a lack of probable cause

Question 5

Does a witness have a constitutional right to testify?

Answer 5

No, only criminal defendants do

Question 6

If a witness is going to commit perjury, and the attorney knows this, can the attorney put him on the stand?

Answer 6

No

Question 7

Disclosing perjury to the court can only be done when?

Answer 7

After the attorney has tried to convince the client to do the right thing first. Attorneys should never disclose more information than necessary to the court

Question 8

Can an attorney disclose a client’s perjury to the court to get permission to withdraw?

Answer 8

Yes

Question 9

What are the rules under MR 4.2 communicating with those that are represented by counsel?

Answer 9

An attorney cannot communicate about the subject of representation with anyone that the attorney knows is a represented party or their employee without the opposing party’s attorney’s consent or presence

Question 10

One side’s attorney cannot communicate directly with the other party without what?

Answer 10

The other attorney’s permission

Question 11

Is it proper for an attorney to meet with the opposing party’s accountant without first getting the defendant’s attorney’s permission?

Answer 11

No

Question 12

If a represented opposing party initiates or consents to a communication with the other side’s attorney, is it proper for the attorney to speak with that person?

Answer 12

Not without first getting the permission of that opposing party’s attorney

Question 13

If an attorney doesn’t realize that another party is represented by an attorney and he is in communication with him, but then finds out later, what must the attorney do?

Answer 13

Terminate communication

Question 14

Can parties to a matter communicate directly with each other?

Answer 14

Yes

Question 15

Is it proper if an attorney serves a request for production of documents on a corporation, and they refuse, so she goes to the restaurant next-door and talks to a corporate manager that is eating at the restaurant?

Answer 15

No, the attorney cannot contact the manager directly because that is another person that is represented by an attorney in the same case, without consent of opposing counsel

Question 16

Who does the “no contact rule“ apply to for corporations?

Answer 16

Anyone with managerial responsibility

Question 17

If an attorney handles a plaintiff’s mass tort cases and sends a settlement offer in writing to both the defendant and his counsel, is that proper?

Answer 17

No, because you can’t directly communicate with the defendant if you know he has counsel

Question 18

Is it proper for a prosecutor to visit defendants in jail without their attorney knowing and try to get them to plead to a lesser charge?

Answer 18

No, the prosecutor cannot discuss the subject of the representation with someone he knows is represented by counsel without first getting their attorney’s consent or a court order. Still true even if they ask to speak with the prosecutor