Professional Responsibility Flashcards
Attorney’s Duty of Candor to the Court and Fairness to Adversary
An attorney is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrep. cannot engage in conduct involving dishonesty, fraud or misrepresentation.
These duties can trump conflicting duties of confidentiality and loyalty.
Duty to State the Law Truthfully
Knowingly making a false statement of the law to the court is subject to discipline. Must be candid about the law.
- Duty to cite adverse authority, if from controlling jdx and…
- Presenting frivolous claim subject to disciplinary action.
Duty to Present Facts and Evid Truthfully
An attorney cannot make material misrepresentation or fail to correct a material misrepresentation previously presented
Client Perjury: Definition
Cannot knowingly facilitate client perjury.
**Civil case: Must refuse to let client testify if he’ll present false evid.
**Crim case: Crim Ds have 5th right to testify on their own behalf and 6th right to effective counsel.
Overall:
- Any obligation to correct ends w/ the proceedings (through time of appeal).
- Cannot counsel or assist a witness to testify falsely or to become “unavailable” to testify.
- May pay basic expenses of witnesses so long as not contingent on content.
Client Perjury: Procedure during trial (ABA and CA)
Counsel client to testify truthfully or not take the stand.
Try to withdraw from case. *CA: Seeking withdrawal is permissive, not mandatory.
If that fails, tell the judge.
*CA: Allow client to testify in narrative fashion but do not further the deception.
Biggest diff – CA more protective of client confidences!
Duty to Produce Evid (cross over w/ crim law)
Cannot knowingly withhold or tamper with physical evidence that attorney or client has legal obligation to reveal or produce.
*If attorney is reasonably certain something is a fruit or instrumentality of a crime, must turn it over to the authorities.
Duty to Produce Evid (cross over w/ crim law): Interference w/ evid
If attorney/investigator sees contraband but does not touch, no problem. If touches, may be compelled to produce/testify because attorney moved or altered it.
Duty to Produce Evid (cross over w/ crim law): Ex parte proceedings
Must reveal all relevant info, even if harmful to client’s case.
Duty to Produce Evid (cross over w/ crim law): Prosecutor’s Duty
Must timely disclose favorable evidence to defense, regardless of admissibility or impact on outcome.
Duty to Produce Evid (cross over w/ crim law): Mistaken Receipt
If attorney knows document was inadvertently sent, must stop reading and notify opposing counsel.
Duty to Uphold the Law
Permitted to disclose facts to prevent death or serious bodily harm.
Duty to Uphold the Law: Client Fraud
No duty to reveal client’s fraud, unless failure to do so would assist a crime.
However, keep in mind an attorney can be compelled to reveal info to prevent future crime or fraud, which is an exception to AC privilege.
Duty to Uphold the Law: Assistance in crime
Don’t counsel client on how to break the law.
*May withdraw if the client persists in a course of action that reasonably believe is criminal.
**Must withdraw if continued representation would require to commit or assist in committing a crime
Attorney’s Duty of Candor to the Court and Fairness to Adversary: List of duties
Duty to State the Law Truthfully
Duty to Present Facts and Evid Truthfully
Duty to Produce Evid
Duty to Uphold the Law
Attorney’s Duty of Candor to the Public and Dignity of the Profession – Advertising and Solicitation
State can regulate attorney advertising and solicitation subject to lawyer’s limited commercial speech rights under the 1st Amendment.
Attorney’s Duty of Candor to the Public and Dignity of the Profession – Advertising and Solicitation: 1st Amendment commercial speech test
A restriction of commercial speech is constitutional if:
*Gov asserts a substantial interest (dignity of profession),
**Reg directly advances that interest, and
***It is narrowly tailored.
Advertising
A lawyer’s communication w/ the public at large, or a segment of the public.
Advertising must not be false or misleading.
***CA: Presumes improper any ad that contains any guarantees, warranties, or predictions of a result. No testimonials or endorsements may be used unless there is an express disclaimer that positive results/wins aren’t guaranteed.
Advertising must nor harass or solicit someone who has indicated that he wants to be left alone. Targeted direct mail OK but must label as “advertising material.”
Labeling & Records: Every ad must be labeled as ad, and dramatization must be noted. Must identify at least one lawyer responsible for contents. Must keep records of content and placement of ads for 2 years.
Solicitation
Refers to individualized contact with a layperson, initiated by the lawyer or his agent that is designed to entice him to hire the lawyer.
Do not seek professional employment for pecuniary gain by initiating a live, telephone, or real-time electronic contact with a prospective client with whom you have no prior professional, personal, or family relationship.
**CA: Presumes communications made at the scene of an accident or en route to a medical facility are improper, as are communications to potential clients that you should know are not in the physical and mental state to exercise reasonable judgment.
Referrals
Payments for referrals are not allowed except for:
**Fee splitting with other lawyers under CA rules, or
**Small, ordinary fees paid to authorized lawyer referral services.
Attorney duties to the client (List)
Duty of confidentiality
Duty of loyalty/no conflicts of interest
Duty of financial integrity
Duty of competence
*Duty of diligence
*Duty to communicate
*Duty to withdraw from representation
