Rule 3: Advocate Flashcards
Meritorious Claims and Contentions Rule
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. (3.1)
When is an action frivolous?
An action is frivolous if the lawyer is unable to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.
An action is NOT frivolous merely because the facts have not been fully substantiated, or because the lawyer does not have vital evidence but expects to develop it through discovery.
(3.1)
Expediting Litigation Rule
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. (3.2)
What is the standard for expediting litigation?
The standard is for a competent lawyer acting in good faith: whether this lawyer would regard the course of action as having some substantial purpose other than delay.
Financial or other benefit from an otherwise improper delay in litigation is not a legitimate interest of the client.
(3.2)
Candor Toward the Tribunal Rule
A lawyer shall not knowingly
1) make a false statement of fact or law to a tribunal (or correct a false statement);
2) fail to disclose legal authority in the controlling jurisdiction they know to be directly adverse to the position of the client, and not disclosed by opposing counsel; or
3) offer evidence the lawyer knows to be false (3.3a)
A lawyer who represents a client in an adjudicative proceeding and knows someone intends to engage in criminal or fraudulent conduct relating to the proceeding, shall take reasonable remedial measures including disclosure to the tribunal if necessary. (3.3b)
The above duties continue to the end of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by 1.6 confidentiality (3.3c)
In an ex party proceeding, a lawyer shall inform the tribunal of all material facts that will enable the tribunal to make an informed decision, whether or not the facts are adverse. (3.3d)
Is it an MPC violation if a lawyer fails to disclose a material fact or law?
It can be. Failure to disclose can be an equivalent of an affirmative misrepresentation, and knowledge can be inferred from circumstances. (3.3a1)
What if a party other than the lawyer misleads a tribunal with facts or evidence the lawyer knows is false?
A lawyer cannot allow the tribunal to be misled by false statements of fact or law, or by evidence. (3.3a2)
What if a client or witness offers, or wants a lawyer to offer, evidence the lawyer thinks is false?
If a lawyer, client, or witness that the lawyer calls offers false evidence, the lawyer must take reasonable remedial measures including (if necessary) disclosure to the tribunal as soon as they learn it is false.
If a lawyer is asked to offer evidence they reasonable believe is false, they may refuse to offer it.
If the lawyer knows the client intends to falsely testify or offer false evidence, the lawyer should persuade the client that the evidence should not be offered. If the client is not persuaded, the lawyer must refuse to admit the evidence.
If the lawyer only reasonably believes (but does not know) the intended testimony will be false, the lawyer may not refuse to offer the testimony.
This includes ancillary proceedings.
(3.3a3)
What if a lawyer finds out that false information was offered during the proceeding?
The lawyer should meet with the client confidentially and inform them of the lawyer’s duty of candor to the tribunal, and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.
If the client refuses and the lawyer cannot withdraw, they should make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if it reveals 1.6 confidential information.
(3.3c)
Fairness to Opposing Party and Counsel Rule
A lawyer shall not:
unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, and shall not counsel or assist another person to do any such act (3.4a);
falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law (3.4b);
knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists (3.4c);
in pretrial procedure: make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party (3.4d);
in trial: allude to any matter the lawyer does not reasonably believe is relevant, or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion of the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused (3.4e);
request a person other than a client to refrain from voluntary giving relevant info to another party UNLESS (1) the person is a relative, employee, or agent of a client, and (2) the lawyer reasonably believes that person’s interests will not be adversely affected by refraining from giving such info. (3.4f)
May a lawyer ever take possession of evidence, which may obstruct a party’s access to it?
A lawyer may take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. (3.4a)
May a lawyer pay witnesses for their testimony?
A lawyer may not pay an occurrence witness a fee for testifying. Expert witnesses can be paid a fee, but not a contingent fee. (3.4b)
Impartiality and Decorum of the Tribunal Rule
A lawyer shall not:
seek to influence a judge, juror, prospective juror or other official by means prohibited by law (3.5a);
communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order (3.5b);
communicate with a juror or prospective juror after discharge of the jury if (1) the communication is prohibited by law or court order, (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves a misrepresentation, coercion, duress, or harassment (3.5c); or
engage in conduct intended to disrupt a tribunal (3.5d).
Trial Publicity Rule
A lawyer who is participating (or has) in the instigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated publicly and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (3.6a)
Notwithstanding the above, a lawyer may state:
1) the claim, offense or defense involved, and (except where prohibited) the identity of the person involved;
2) investigation contained in a public record;
3) that an investigation of a matter is in progress;
4) the scheduling or result of any step in litigation;
5) a request for assistance in obtaining evidence and information necessary thereto;
6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that likelihood of substantial harm exists to an individual or public interest;
7) additions during a criminal case: identity, residence, occupation, family status of the accused; info necessary to aid in apprehension; fact, time, and place of arrest; identity of investigating and arresting officers or agencies and length of investigation (3.6b)
Notwithstanding the general prohibition, a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudice effect of recent publicity not initiated by the lawyer or the client. Must be limited to info necessary to mitigate the recent adverse publicity (3.6c)
Prohibition on public statements is imputed from a lawyer to their firm or government agency (3.6d)
When a lawyer is deciding whether to make a public statement on a matter, what subjects are likely to have a materially prejudicial effect on a proceeding?
Character, credibility, reputation, or criminal record of a party
Possibility of a plea of guilty to the offense or existence of contents of any confession, admission, or statement given by the defendant or suspect
Performance or results of any examination or test or refusal or failure of a person to submit to an exam or test, or the identity or nature of physical evidence expected to be presented
Any opinion of the guilt or innocence of a defendant
Info that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in trial
The fact that the defendant was charged with a crime, without the qualifier that he is innocent until proven guilty
Statements are more likely to prejudice with a jury trial than with a bench trial
