Duty of Candor to the Court and Fairness to your Adversary

Question 1

What are the basics regarding the duty of candor and fairness?

Answer 1

You cannot engage in conduct involving dishonesty, fraud, or misrepresentation. Even within our adversarial system these duties TRUMP conflicting duties of confidentiality and loyalty to your client.

Question 2

What are the major duties under this subheading?

Answer 2

Duty to present facts and evidence truthfully,
Duty to produce evidence
Duty to state the law truthfully
Duty to uphold the law

Question 3

What is the duty to present facts and evidence truthfully?

Answer 3

You must refuse to make false statements of material fact or offer evidence you know is false to a tribunal, or fail to correct a false statement of material fact or law that you previously presented.

Question 4

Are you allowed to allow or facilitate a client committing perjury? And you know.

Answer 4

NO

Question 5

If a client intends to perjure himself in a civil case what must you do? And you know.

Answer 5

Refuse to call him as a witness.

Question 6

If a client intends to perjure himself in a criminal case what do you do? And you know.

Answer 6

You counsel him to tell the truth, try to withdraw from the case, or under the ABA tell the judge.

Under CA, you allow the D to testify in a narrative fashion but do not further the deception.

Question 7

Why must you allow a client to perjure himself in a criminal case? And you know.

Answer 7

5th Amendment right to testify on his own behalf and 6th Amendment right to the effective assistance of counsel.

Question 8

What if, only after the proceeding ends, a client tells you that he lied on the stand?

Answer 8

You must take remedial measures (counsel him to recant) but your duties end w/ the proceeding (after the time for appeal has run)

Question 9

May you counsel a witness to testify falsely?

Answer 9

No

Question 10

Can you simply make a witness unavailable?

Answer 10

No, unless prohibited under local law you must pay basic expenses of a witness and reasaonable fees of an expert witness, as long as payment is not contingent on the content of the testimony.

Question 11

What if you do not know definitively whether or your client is going to perjure himself?

Answer 11

Then the rules are permissive

Question 12

What is the duty to produce evidence?

Answer 12

You must not suppress any evidence that you or your client has a legal obligation to reveal or product, regardless of your duty of loyalty. You must not obstruct access to or tamper with fruits or instrumentalities of a crime

Question 13

If you are given a kilo of cocaine and $100,000 from a client, what must you do?

Answer 13

Deliver the drugs to the police or DA. The money, it is debatable. If you are reasonably certain it is the instrumentality of a crime you should turn it over.

Question 14

What if a client, when giving you a kilo of cocaine and $100,,000 says I’m rich but it is all blood money, I want out, may you disclose what he says to you?

Answer 14

no, that’s confidential

Question 15

What if a client brings you a shotgun and says I killed my father with it. He is charged with murder, and you are subpoenaed for the production of physical evidence received from your client. Must you turn over the gun?

Answer 15

Yes.

Question 16

Exam Pro Tip

Answer 16

Draw a distinction between physical evidence and confidential information.

Question 17

What if a client told you he threw an emptied gun which he used to kill his father into the bushes behind his house? Your investigator finds it but leaves it untouched. May you be compelled to tell the authorities about it?

Answer 17

No, you can look but do not touch.

Question 18

If an investigator retrieves and examines a weapon in a murder, must you disclose where it was found?

Answer 18

Yes.

Question 19

How long can a lawyer retain evidence?

Answer 19

For a reasonable time to prepare his client’s case.

Question 20

What is the special duty of a prosecutor in regards to evidence?

Answer 20

He must timely disclose evidence favorable to the defense.

Question 21

What is an ex parte proceeding?

Answer 21

Communications with the judge without your adversary present.

Question 22

What are your ethical duties regarding ex parte proceedings?

Answer 22

Duty of candor and fairness to your absent adversary require you to volunteer relevant information, trumping the normal presumption that you not reveal facts harmful to your client.

Question 23

What is your duty to state the law truthfully?

Answer 23

Knowingly making a false statement of law to the court is subject to discipline. Be candid about the law and to cite to adverse authority if controlling and on point. Presenting frivolous claims or defenses is subject to discipline.

Question 24

What is your duty to uphold the law?

Answer 24

If continued representation would require you to commit or assist in committing a crime, you must withdraw! (If your client persists in criminal acts, but you are not assisting, you may withdraw).