Different Roles of a Lawyer Flashcards
(29 cards)
If lawyer controls means, must she consult client on everything
no , only reasonably consult requirement; consider time requirements if can’t find client
Frivolous claim exceptions
A good faith argument for an extension, modification, or reversal of existing law is not frivolous.
Frivolous claims before legislative committee
This prohibition does not extend to situations other than legal proceedings in which a lawyer may represent a client. such as an appearance before legislative committee.
action is not frivolous if lawyer thinks she will lose if
lawyer expects to develop critical evidence only through discovery.
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 beyond a reasonable doubt, even if there is not a factual or legal basis for challenging the element. MRPC 3.1.
Can you delay to realize more financial gain for client?
Realizing a financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.
Duty of candor ends..
The duty of candor applies through the conclusion of the proceeding, which is defined as when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed. MRPC 3.3(c), cmt. 13. It applies even if compliance requires disclosure of information otherwise protected by the ethical duty of confidentiality. MRPC 3.3(c).
Under certain circumstances, however, a failure to make a disclosure would be the equivalent of an affirmative misrepresentation.
Thus, if the lawyer fails to correct what she knows to be a court’s erroneous understanding of a fact, such failure would be improper.
ex parte proceeding exceptions to disclosure (no opposing counsel)
In an ex parte proceeding (e.g., an application for a temporary restraining order), a lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse to the lawyer’s client. MRPC 3.3(d).
Contingency expert fees
Expert fees may not be contingent on the outcome of the matter. MRPC 3.4, cmt. 3.
Prohibited Speech to Jury
MRPC 3.4(e). When addressing the jury, a lawyer is prohibited from alluding to evidence that is ruled inadmissible by the court. The lawyer is also prohibited from (i) asserting personal knowledge of facts in issue except when testifying as a witness, or (ii)stating a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused. MRPC 3.4(e). The lawyer may make an argument about any of the above based on the evidence in the case, however.
requirements to ask someone to keep quiet
A lawyer must not request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (i) the person is a relative or an employee or other agent of the client; and (ii) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information. MRPC 3.4(f).
Examiners frequently test the subtle distinction between knowing and reasonably believing that evidence is false. The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false.
A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier-of-fact.
*CANNOT offer anything you don’t KNOW to be false for criminal defendants
full disclosure of perjury?
Reasonable remedial measures can include confidentially advising the client of the lawyer’s duty of candor and urging the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the lawyer is required to take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the lawyer must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected as confidential by the Model Rules. MRPC 3.3, cmt. 10.
Narrative exception to perjury:
Narrative required by local law
In some jurisdictions, courts have required lawyers to present the accused as a witness or to allow the accused to give a narrative statement if the accused so desires, even if the lawyer knows that the testimony or statement will be false.
Can state retry defendant for perjury after trial?
Narrative required by local law
In some jurisdictions, courts have required lawyers to present the accused as a witness or to allow the accused to give a narrative statement if the accused so desires, even if the lawyer knows that the testimony or statement will be false.
lawyer can withold information from client if
There are some times when a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that such disclosure would harm the client. MRPC 1.4, cmt. 7. Note that a lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person. In some instances, local rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. A lawyer is required to comply with such rules or orders. See MRPC 3.4(c).
Administrative ex parte communications prohibited and allowed with judiciary
A routine and customary request, such as a communication dealing with the scheduling of a hearing, is not prohibited, but a communication made for the purpose of having a matter assigned to a particular judge is prohibited.
Look for questions placing a lawyer with good intentions in ex parte communication situations.
The lawyer is subject to discipline even if no harm is intended or results.
Exceptions to misstatmeent of fact
-puffing, t (e.g., estimates of price or value placed on the subject of a transaction; a party’s intentions as to an acceptable settlement of a claim; and the existence of an undisclosed principal, except when nondisclosure of the principal would constitute fraud).
When you must diclose facts to authorities
A lawyer must also not fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Model Rule 1.6, regarding confidentiality. MRPC 4.1(b). See also MRPC 1.2(d) (prohibiting lawyers from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent).
If lawyer has to withdraw because of implication in drime,
The lawyer may notify the affected third person of the fact of the withdrawal. I
exception to communication prohibition with represented people
Note that the rule does not apply to prohibit communication with a represented person, or an employee or agent of such person, with regard to any matter outside the representation. The rule also does not prohibit communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. MRPC 4.2, cmt. 4.
exceptions to talking to employees of represented org clients
1) In general
In the case of a represented organization, a lawyer is prohibited from communicating with a constituent (e.g., employee) of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. MRPC 4.2, cmt. 7.
2) Former constituent
Consent of the organization’s lawyer is not required for communication with a former constituent. MRPC 4.2, cmt. 7.
