Bounds of Lawyers' Representation

Question 1

Scope of representation

Answer 1

1. client determines the scope of the representation

2. lawyer responsible for informing the client of and operating within the law and the RPC

Question 2

Roles of client and lawyer

Answer 2

1. client determines the objectives of the representation and has control over substantive rights
   i. lawyer guides client regarding law and ethics
   ii. criminal cases: client decides whether to plea, waive jury trial, or testify in own defense
   iii. civil cases: client decides whether to settle and on what terms
2. lawyer determines means: technical, legal, and tactical matters
   i. lawyers should defer to clients regarding what expenses to incur and how to treat third parties that may be adversely affected
   ii. such as choice of motions
   iii. never assista client in a matter you know is criminal.

Question 3

LIMITATIONS TO REPRESENTATION

Answer 3

1. lawyer may reasonably limit the scope of the representation with the clients informed consent
2. must not assist or counsel client in crime or fraud
   i. must withdraw if client insists on unethical or illegal assistance
   ii. must withdraw if lawyer believes client is using her advice to commit an ongoing or future crime or fraud (mere belief client is a criminal is not sufficient)
3. may reveal confidential information to prevent or modify substantial financial injury caused by client’s use of lawyer’s advice in a crime or fraud
4. a lawyer may discuss a proposed course of conduct, and explain that it would be unlawful
5. prohibition against recommending illegal conduct does not prevent good faith testing of the scope of validity of a law

Question 4

LITIGATION CONDUCT

Answer 4

1. must not make frivolous claims or defenses
   i. must cite adverse authority if it’s on point.
2. must make reasonable efforts to expedite litigation with the interests of the client
3. prohibited from using threats to bring disciplinary, admin or criminal cases to get leverage.

Question 5

COMMUNICATIONS WITH REPRESENTED PERSONS

Answer 5

1. must not communicate with a person the lawyer knows is represented by counsel in the matter of the representation
   i. applies even if the represented person initiates or consents
   ii. can communicate about stuff not related to the representation
2. exceptions if: counsel is present, consents, or lawyer is authorized by law, or giving a separate legal opinion

Question 6

Communication with Represented Organization

Answer 6

3. lawyer must get consent of the corporation’s counsel before communicating with a current constituent of the organization who:
   i. who supervises or regularly consults with the organization’s lawyer about the matter
   ii. whose conduct may be imputed to the organization under civil or criminal law, or
   iii. who has authority to bind or obligate the organization concerning the matter
   iv. CA: requires consent of officer, director, or managing agent.
4. if the constituent is represented by her own counsel, then consent by that counsel is sufficient
5. consent is not needed to talk to a former constituent of the organization, but still must not to violate the organization’s legal rights, such as the attorney-client privilege (i.e. can’t aid or abet the former constituent to disclose confidential or privileged information)
6. lawyer may communicate with the organizations in-house counsel about the matter without obtaining prior consent of the organization’s outside counsel

Question 7

Communications with Unrepresented Persons

Answer 7

1. lawyers can speak directly with unrepresented persons
2. cannot misrepresent themselves as being disinterested
   i. a lawyer must not state or imply that she is disinterested in the matter
   ii. must reasonably correct any misunderstanding by the unrepresented person as to lawyer’s role in the matter
3. must not give legal advice to a 3P (other than to get a lawyer) if lawyer knows his client’s interests are likely to be in conflict with that person
   i. can negotiate a transaction for client with 3P, draft an agreement, and explain its legal effect to a 3P without violating the rule

Question 8

DEALING WITH THE PRESS

Answer 8

4. MUST avoid out of court statements that may materially prejudice the case
5. Exceptons
   i. Matters in public record
   ii. Informing them of ongoing investigation
   iii. To mitigate undue prejudice to client from publicity you didn’t start
6. Prosecutors must not make statements that have a substantial likelihood of heightening public condemnation for the excuse

Question 9

Respect for Third Persons

Answer 9

1. must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person
2. must not use methods of obtaining evidence that violate the legal rights of a third person

Question 10

Rights of Third PErsons – Documents

Answer 10

1. lawyer who receives documents relating to the representation that appear to be confidential and privileged, and who knows or should know they were sent inadvertently, must stop examining them and promptly notify the sender so that the sender can take protective measures
   i. may not copy, use the documents until matter is pending.
   ii. Most important is to notify the sender.
2. Mining metadata is allowed
3. CA: if an anonymous source provides documents apparently containing privileged or confidential information communications between opposing counsel and his client, the lawyer must not read the material and must notify opposing counsel
4. no waiver of attorney-client privilege if inadvertent disclosure is made in a federal proceeding or to a federal agency and the attorney takes reasonable steps to prevent disclosure and rectify the error

Question 11

Truthfulness in Statements to Others

Answer 11

1. no duty to inform a third party of relevant facts (except to inform third party if client dies)
2. must not make false statements of law or fact when dealing on behalf of a client with 3P
   i. includes when a lawyer knowingly makes or incorporates a false or misleading statement, or failure to speak in some cases
   ii. conventional puffery is permitted, including estimates of price or value and a party’s intentions as to settlement of a claim
3. must disclose material facts to a 3P when necessary to avoid assisting client in a crime or fraud, unless forbidden to do so by confidentiality
   i. then withdrawal req’d or noisy withdrawal req’d if lawyer’s assistance was used (i.e. notify 3P of withdrawal and disavow past statements)

Question 12

Duty of Candor

Answer 12

1. lawyers must exercise independent professional judgment and render candid service

Duties to tribunal can trump duties to the client.

Question 13

Candor towards tribunal – Facts

Answer 13

1. must not knowingly making a false statement of fact to the court or for fail to correct a false statement of material fact
   i. attorneys do not need personal knowledge of facts, but must know or reasonably believe facts asserted to be true based on reasonably diligent inquiry
2. silence is an affirmative misrepresentation if attorney or client caused the misunderstanding
3. no duty to volunteer harmful facts
4. exception: in ex parte proceedings, lawyers must disclose all known material facts, whether or not adverse
5. CA: allows ex parte communications without any special duty of candor

Question 14

Candor towards tribunal – Law

Answer 14

1. must not make a false statement of law, and must correct false statements of law
2. must not knowingly fail to disclose legal authority in the controlling jurisdiction that is directly adverse to the client’s position and that has not been disclosed by opponent

Question 15

Candor Towards Tribunal – Evidence : Perjury (ABA Rules)

Answer 15

i. Must not knowingly facilitate a perjury

ii. may refuse to offer evidence that she reasonably believes is false, but not a criminal defendant’s testimony on his own behalf
a. can offer or not offer evidence if lawyer reasonably suspects it to be false

iii. must not offer evidence that the lawyer actually knows is false

iv. perjury: client who insists of offering false evidence the lawyer (steps):
a. must convince the client to not offer the evidence
b. must refuse to offer the evidence (but cannot prevent criminal ∆s from testifying)
i) must take reasonable remedial measures
a) counsel client to testify truthfully or convince him not to take stand
b) may try to withdraw from the case. Permissive withdrawal for work repugnant.
c. may ask the tribunal for permission to withdraw, or must seek withdrawal if relationship has become so strained that representation is impossible
d. if withdrawal is not permitted or insufficient, must disclose the situation to the judge, even if requiring disclosure of client’s confidential or privileged information

Question 16

Candor Towards Tribunal – Evidence : Perjury (CA Rules)

Answer 16

if client insists on offering false evidence in a civil case:

a. may ask the tribunal for permission to withdraw
b. may call the defendant as a witness and question him ordinarily up until when the lawyer knows the defendant will testify falsely
c. may allow defendant to testify in narrative fashion after that point
i) but do not further the deception
ii) do not ask questions, do not use that evidence later for the jury.
d. must not rely on false testimony in the case

Question 17

Notes on Perjury

Answer 17

vi. NOTE: if it’s not the defendant itself perjuring himself, do not put a non-defendant on the stand.
a. Protections only apply to criminal defendants (and in CA, client as defendant)
vii. NOTE: rules are permissive if you do not know but only reasonably believe that your someone is perjuring themselves.

Question 18

After the fact discovery (remedial measures)

Answer 18

viii. if lawyer later discovers (after the fact) false evidence was offered, must take reasonable remedial measures: (steps)
a. move to strike the false evidence or take other steps to cancel out its effect by:
b. must speak confidentially with client, explain the duty to reverse false evidence, and ask client to cooperate in withdrawing the evidence
c. may ask the tribunal for permission to withdraw, or must seek withdrawal if relationship has become so strained that representation is impossible
d. if withdrawal is not permitted or insufficient, must disclose the situation to the judge, even if requiring disclosure of client’s confidential or privileged information
e. duty to rectify false evidence lasts until judgment affirmed on appeal or time to appeal expires
f. CA: silent on duty to take remedial measures

Question 19

False evidence

Answer 19

i. Must not suppress evidence that you or your client has a legal obligation to reveal or produce, regardless of duty of loyalty

ii. Must not obstruct access to or tamper with fruits or instrumentalities of a crime.
a. i.e. you must turn over the gun. Not insulated by confidentiality or privilege.
b. But you’re not required to disclose what your client said to you about the gun.

iii. Interference with evidence.
a. If you know where evidence is, and the police cannot find it. But not required to disclose where it is.
b. However, if you take evidence into your custody, you may be required to produce it and to testify about original condition and location of evidence that she moved or altered.
i) But you’re not required to reveal the source of the evidence.
c. You may retain evidence for a reasonable time to conduct tests.

Question 20

Fairness to opposing side - discovery

Answer 20

• lawyers must not:

1. falsify evidence, counsel a witness to testify falsely, or offer witnesses illegal inducements
2. unlawfully obstruct another party’s access to evidence
3. alter, destroy, or conceal evidence, nor aid or abet another to do so
4. knowingly violate procedural rule, evidence rule, court rule, or court order, though can refuse to obey a rule or order to make a good faith challenge as to its validity
5. make frivolous discovery requests, and must reasonably comply with proper discovery requests with reasonable diligence

Question 21

Fairness to opposing side - Proceedings

Answer 21

• lawyers must not:

1. refer to inadmissible material (i.e. material that is not relevant or admissible)
2. assert personal knowledge of facts in issue, unless testifying as a witness
3. state a personal opinion about the justness of a cause, the credibility of a witness, culpability of a civil litigant, or guilt or innocence of the accused
   i. distinguish making an argument based on evidence about vs. stating a personal opinion
4. use the threat of related criminal charges (in a civil case) or threaten opposing counsel with ethical sanctions to gain an advantage for the client

Question 22

Fairness to opposing side - Witnesses

Answer 22

1. must not falsify evidence, nor assist a witness in testifying falsely (can refresh memory but cannot supply testimony)
2. must not pay witnesses, except for expenses and fees for experts (not contingent on outcome)
3. must not cause or advise a person to flee the jx to to be unavailable as a witness
4. may advise person to not voluntarily give information only if:
   i. person is a client, relative, employee, or agent of the client, and
   ii. lawyer reasonably believes that person’s interests will not be harmed by withholding the information (ex. can’t advise them to avoid a subpoena)
   iii. otherwise lawyers cannot stop people from sharing information

Question 23

Dignity and decorum

Answer 23

1. Preserve decorum and impartiality of tribunal
   i. Do not influence anyone
   ii. Do not talk to prospective or impaneled juror
   a. May interview jurors after trial is over
2. No chicanery – i.e. trickery
   i. Trial theatrics like referring to impermissible, inadmissible evidence or referring to personal knowledge of a fact
3. Preserve decorum
   i. No theatrics, belligerence, abuse

Question 24

IMPROPER CONTACT WITH COURT AND JURY

Answer 24

4. lawyers must not
   i. seek to influence a judge, juror, prospective juror, or other officials through illegal means
   ii. communicate ex parte with any such person unless permitted by law or court order
   iii. engage in conduct intended to disrupt a tribunal

Question 25

ADVOCATE IN NON-ADJUDICATIVE PROCEEDINGS

Answer 25

1. when appearing on behalf of a client before a legislative body or administrative agency, the lawyer must disclose that he is acting in a representative capacity
2. must generally follow the same rules of conduct as though in court
3. these rules do not apply:
   i. in an application for a license or other privilege
   ii. when the government is examining the client’s compliance with a regular reporting requirement (such as the filing of tax returns)
   iii. when the government is investigating the client’s affairs, or
   iv. when a lawyer represents a client in bilateral negotiations with the government

Question 26

TRIAL PUBLICITY

Answer 26

1. lawyers connected w the case must not make public out-of-court statements that have a substantial likelihood of materially prejudicing the case
   i. but can make a public statement reasonably required to protect a client from substantial undue prejudice resulting from publicity that is not initiated by the lawyer or client
2. prosecutors must not make extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused
3. a lawyer connected with the case may publicly state certain “dry facts” about the case