PR Flashcards
Special Duties of Prosecutors
A prosecutor must not file a charge that the prosecutor knows is not supported by probable cause.
The MR also prohibits prosecutors from making or allowing others assisting in the case from making prejudicial statements that would likely heighten public anger towards the accused
Duty to Trial Publicity
No extrajudicial statements that are publicly disseminated that will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
A lawyer however may state basic facts such as claim, offense, or defense, and the identity of persons involved.
Duty to Preserve Evidence
MR & CA, lawyer must not unlawfully alter, destroy, or conceal a document or other material with evidentiary value. Generally, duty to protect and preserve evidence.
Duty to not present false evidence (CA)
Self-Explanatory
Duty to the Tribunal
No seeking to influence jurors or meet w/ judge in bad way
Duty of Candor to the Court
No lying to court
No making false statement or failing to correct false statement
If criminal defendant knows or reasonably believes testimony is false, must allow defendant to testify.
Try to convenience them otherwise, ask court to withdraw, or disclose to court. In CA, can’t disclose, let them testify in narrative format.
Duty to Opposing Counsel (Duty of Fairness)
Inadvertent Disclosure: A party who receives an inadvertently disclosed document must notify the other party (MR). In CA, not only must the receiving party notify the opposing party, but they must stop reading as soon as they realize that it was inadvertently sent/that it is privileged
Don’t falsify evidence; no frivolous discovery requests
Must disclose all exculpatory evidence that tends to disprove the guilt of the accused.
Duty to Represented Parties
A duty must not contact a represented person or organization unless they have informed consent from the opposing counsel or are permitted to do so by court order/law
Employment Considerations
Duty to Supervise: A lawyer is required to ensure that anyone that they directly supervise comports their conduct with the ethics rules.
Duty of Subordinates: A subordinate must not breach the ethics rules, even at direction of supervisory lawyer. A subordinate does not breach the rules if the supervising attorney if there is a reasonable resolution of an arguable question of professional duty.
Unauthorized Practice of Law: A lawyer may not support a non-attorney in the unauthorized practice of law. Doing so opens up the employee to criminal/civil penalties but not ethics discipline. The attorney faces all three.
Employment of disbarred attorneys: A lawyer may not hire a disbarred attorney to perform legal functions. However, a lawyer may retain a disbarred attorney to perform non-legal functions if they notify the state bar of the employment and which clients the disbarred attorney is working for.
Types of Suits Not Allowed
Duty to file non-frivolous lawsuit: An attorney must not file a claim that does not have a sufficient legal basis. However, an attorney may file a claim if they have a good faith belief that the law could be modified/repealed.
Duty to not file a harassment suit: An attorney must not file a suit that has the primary purpose to harass a party.
Duty to Not Threaten (CA): In CA, an attorney may not threaten administrative, criminal, or disciplinary action to gain an advantage.
Advertisment
General: No false/misleading communication: truthful; labeled as advertising; name/address required
Can say specialist if approved by bar
Can say speak language if true.
Solicitation: No soliciting in-person, by telephone, or (in CA) real time electronic communication unless: (1) person is a lawyer; or (2) close family relationship
Running and Cappers: Can’t have agents be “ambulance chasers.” Criminal violation in CA
Duty to Report
Model Rules: Lawyer with ACTUAL KNOWLEDGE MUST report material matters about another lawyer that affect the other’s lawyer’s honesty/fitness
CA: No snitching, except to self report.
Withdrawal
Mandatory
A lawyer must withdraw if: (1) client is filing frivolous or harassment lawsuit; (2) lawyer would have to break ethical duty (or other law for MR); or (3) mental/physical health of the lawyer would make continued representation impractical.
Permissive
MR: Lawyer finds clients actions repugnant or L fundamentally disagrees with them
CA: When the client is unreasonably difficult to work with
Procedures
Must notify client and give them chance to find other representation; if permission is required from tribunal, must get permission first.
Scope of Representation (Start + Scope)
When does it start: representation begins when the client reasonably believes that they have retained the services of the lawyer. No formal writing is required.
What does it cover: Lawyer manages the tactics; client manages objectives/goals
Scope of Representations (Organizations)
Owe a duty to the organization as an entity, not the individual employees. If they believe that the lawyer is representing them, the lawyer must ensure that they make it clear that this is not the case
Report Up: If the lawyer learns of something that will cause substantial harm to the company, must urge reconsideration, then lawyer must report it to the higher authorities within the company if not done.
Report Out: If higher ups do nothing, under the MR the lawyer may report outside the organization. Under CA rules, the lawyer may not report out unless there is a risk of a criminal act causing substantial harm or death.
