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Question 1

What are the three groups of people that an attorney needs consent to talk to when dealing with a corporation or an organization that is already represented by counsel?

Answer 1

– people that supervise, direct, or regularly consult with the organization’s attorney about the matter
– people with authority to obligate the organization regarding the matter
– those whose act or omission in connection with the matter can be imputed to the organization for the purpose of civil or criminal liability

Question 2

Does an attorney need the consent of an opposing corporation’s attorney to speak with a former employee of the corporation?

Answer 2

No, they are not considered to be represented by the organization’s attorney.

Question 3

What is the extent of the legal advice that an attorney can give to an unrepresented person that could be a potential adversary?

Answer 3

Just to tell them to get counsel if the attorney knows or should know that the interests of that person are in conflict with the interests of his client

Question 4

If an attorney is dealing on behalf of his client with someone that is not represented, what must the attorney be very careful to do?

Answer 4

The attorney must be careful to not imply that he is disinterested

Question 5

If an attorney knows or should know that an unrepresented person misunderstands the attorney’s role, what must he do?

Answer 5

Make reasonable efforts to correct the misunderstanding

Question 6

Is it proper for an attorney to negotiate the terms of a transaction or settle a dispute with someone that is not represented?

Answer 6

Yes, the attorney just needs to identify his own client, explain that his client’s interests are opposed to the unrepresented person‘s interests, ensure that he doesn’t imply that he is disinterested, and cannot give them legal advice outside of telling them to get counsel

Question 7

If an attorney for a corporation is opposing a party that is representing themselves and happens to see that person in the grocery store, and tells the party she has no personal interest in litigating, then suggests a dollar amount the corporation would pay, which the party agrees to, would the attorney be subject to discipline?

Answer 7

Yes because the attorney cannot pretend or imply that she is disinterested when dealing with an adverse person that is not represented by counsel

Question 8

What is MR 4.4 regarding respect for the rights of third persons?

Answer 8

When representing a client, an attorney cannot use means that have no substantial purpose besides embarrassing, delaying, or burdening a third person

Question 9

If an attorney gets a document or electronic communication relating to the representation of his client and knows or should know that it was in advertently sent, what must the attorney do?

Answer 9

Promptly notify the sender

Question 10

Why would it be improper for an attorney to go to a witness’s house when she refuses to testify she’s having an affair, and have her kids agree to testify that this is true?

Answer 10

This would be harassing the witness’ kids and would be embarrassing and burdensome to them

Question 11

Why is it improper if an attorney represents a client known to have a hot temper to say during a stalled contract negotiation with the other side that if they can’t work it out, his client will likely do something crazy?

Answer 11

Because this comment has no purpose other than to embarrass or harass

Question 12

What is a non-adjudicative proceeding?

Answer 12

Legislative body or administrative agency meeting

Question 13

If an attorney is representing a party in a non-adjudicative proceeding, what must he disclose?

Answer 13

That the appearance is in a representative capacity

Question 14

Do attorneys have an exclusive right to appear before non-adjudicative bodies?

Answer 14

No, like they do before a court

Question 15

What is the reason that there are rules for attorneys making public comments about pending litigation?

Answer 15

Because we don’t want attorneys to argue their cases outside of court using the media

Question 16

What is the model rule 3.6 regarding public comments about pending litigation?

Answer 16

Attorneys cannot make extra judicial statements that they know or reasonably should know will be publicly disseminated and have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter

Question 17

What are some things that an attorney can say to the public?

Answer 17

Things about the claim/offense/defence involved, identity of the people involved unless prohibited, information that is in public records, statement that investigation of the matter is in progress, scheduling or the result of any step in litigation, request for assistance in getting evidence or necessary information, warning of danger about people when there’s reason to think there is a likelihood of substantial harm to an individual or the public interest

Question 18

What are things that an attorney can say to the public in a criminal case?

Answer 18

The identity, residence, occupation, and family status of the accused, any information needed to aid in his apprehension, the fact at and time and place of arrest, can identify investigating and arresting officers or agencies, and the length of the investigation

Question 19

What is the safe harbour exception to the rule against attorneys making public comments regarding pending litigation?

Answer 19

Attorneys can make statements that a reasonable attorney would believe are required to protect their client from the substantial undue prejudicial effect of recent publicity that was not initiated by the attorney or client. This is limited to what is necessary to mitigate the recent adverse publicity

Question 20

What are attorneys expected to prevent law-enforcement officers from doing regarding public comments?

Answer 20

To prevent them from making statements to the public that would cause substantial undue prejudicial effect to their client

Question 21

If a prosecutor and the police chief gave a press conference and the chief says inflammatory things that the prosecutor could’ve prevented, is a prosecutor subject to discipline?

Answer 21

Yes, to the extent it was possible to stop the police chief

Question 22

Is anything written in the “answer” considered to be public record?

Answer 22

Yes

Question 23

What are some subjects that are likely to have a material prejudicial effect on a proceeding?

Answer 23

Anything about the character, credibility, reputation, or criminal record of a party or witness, the possibility of a guilty plea or a confession/admission/results of an exam/refusal to submit to an exam, opinion about the guilt or innocence of the defendant and anything the attorney knows or should know is likely to be in admissible as evidence at trial and that would create substantial risk of prejudicing an impartial trial

Question 24

What are the special duties of a prosecutor?

Answer 24

• to refrain from making extra judicial comments that have substantial likelihood of heightening public condemnation of a criminal defendant
  – in criminal cases prosecutors cannot make charges they know are not supported by probable cause
  – if the prosecutor knows of credible material evidence creating a reasonable likelihood D did not commit the offense, prosecution must promptly disclose that to the court and undertake further investigation
  – prosecutor must bring criminal prosecutions in a reasonable fashion

Question 25

When can a criminal prosecutor make extra judicial comments that have a substantial likelihood of heightening public condemnation of the defendant?

Answer 25

If they are necessary to inform the public of the nature and extent of the prosecution’s action or serve a legitimate law-enforcement purpose

Question 26

What is a criminal prosecutor’s duty regarding investigators or those associated with the prosecution and their extra judicial statements?

Answer 26

Prosecutor must use reasonable care to prevent investigators or those associated with the prosecution from making extra judicial statements that the prosecution would be prohibited from making themselves

Question 27

What are the myriad of prosecutor duties under MR 3.8 for a criminal prosecutor?

Answer 27

– he can’t make charges he knows are not supported by probably cause
– must make reasonable efforts to ensure the defendant is advised of his right to have counsel and give an opportunity for it
– cannot try to get a waiver of important pretrial rights from an unrepresented party
– must make timely disclosure to the defence of all evidence or information known to the prosecution that tends to negate the guilt of the defendant or mitigate the effects
– for sentencing he must disclose to the defence and the tribunal all underprivileged mitigating information known to him