II. Duty to 3rd parties Flashcards
II. THE ATTORNEY’S DUTY TO THIRD PARTIES
A. The Duty to Opposing Parties in Litigation
B. The Duty to Accept Representation
C. The Special Duty of Prosecutors
A. The Duty to Opposing Parties in Litigation
Includes but is not limited to:
1. Duty to produce evidence
2. Duty to not destroy or tamper with evidence
3. Duty to return documents sent inadvertently
B. The Duty to Accept Representation
COURT APPOINTMENT: L does not have to take it if it would violate law/ethics rule. Must not seek to avoid except for good cause.
CA: No rule, but in taking the CA Attorney’s Oath, each L promises never to reject, for personal reasons, the cause of the defenseless or the oppressed.”
C. The Special Duty of Prosecutors
A. Duties With Respect to Own Case - A prosecutor in a criminal case must:
• Prosecute ONLY with PROBABLE CAUSE:
Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause
• RESPECT RIGHT TO COUNSEL:
Make reasonable efforts to assure that the accused has been advised of the right to counsel and has been given reasonable opportunity to obtain counsel
• PROTECT IMportant PRETRIAL RIGHTS.
Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hear- ing
• DISCLOSE MITIGATING EVIDENCE during case:
Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense, unless the prosecutor is relieved of this responsibility by a protective order of the tribunal (note that this ethical duty exceeds the constitutional Brady obligation, requiring disclosure regardless of admissibility or impact on the outcome)
• Exercise reasonable care to prevent investigators or other per- sons assisting the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making.
• Not subpoena a lawyer to present evidence about a client unless the prosecutor reasonably believes: (1) the information is not priv- ileged; (2) the evidence is essential; and (3) there is no feasible alternative
CA: The California rule does not include the restriction on subpoena- ing lawyers.
B. Duties With Respect to Any Case
a.MUST DISCLOSE NEW, CREDIBLE, AND MATERIAL EVIDENCE of INNOCENCE following Conviction:
- When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted D did not commit the offense, the prosecutor must promptly disclose the evidence to an appropriate court or authority.
If the conviction took place in the prosecutor’s own jurisdiction, the prosecutor must also promptly disclose the evidence to the D and make reasonable efforts to cause an investigation.
b. Clear and Convicting Evidence in Own Jurisdiction—Must Remedy
When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that they did not commit, the prosecutor must seek to remedy the conviction.
DUTIES TO OPPONENTS WHEN ACTING AS ADVOCATE
.A. Opponent’s Access to Evidence:
B. Advising Person Not to Give Information
C. Paying Witnesses
A. Absuing Discovery
EVIDENCE AND WITNESSES
A. Opponent’s Access to Evidence: CANNOT Obstruct, Alter, or Conceal.
- L must not falsify evidence or assist in perjury.
- L must not unlawfully obstruct another party’s access to evidence, or unlawfully alter, destroy, or conceal a document or other item having evidentiary value.
- BUT, L is generally permitted under law to temporarily retain evidence for a limited examination to prepare for the C’s case (for example, to conduct tests) as long as doing so will not materially alter or destroy the evidence.
CA: also specifically prohibits L from:
• Suppressing evidence that the L or the lawyer’s client has a legal obligation to reveal or produce
• Advising a person to HIDE OR TO FLEE the jurisdiction for the purpose of making that person unavailable as a witness.
PHYSICAL E received from C - have to give up, compelled to tell authorities about it. and
CONFIDENTIAL INFORMATION - which you do not.
If L/L’s Investigator retrieves the physical evdience, then IS compelled to produce it for the authorities.
B. Advising Person Not to Give Information
A lawyer may advise a person to refrain from voluntarily giving information to an opponent or other party, but only if the following conditions are met:
(1) the person is a C, or the client’s relative, employee, or agent; and
(2) L reasonably believes that the person’s interests will not be harmed by not volunteering the information.
CA: NO RULE.
C. Paying Witnesses
L must not offer an inducement to a witness that is prohibited by law, and it is generally improper to pay a W for their testimony. The following payments to witnesses are generally allowed:
• Reasonable travel and incidental expenses
• Compensation for loss of time in attending and testifying
• Reasonable fees to expert witnesses
However, payments must NEVER be contingent on the content of the testimony or the outcome of the case.
COURT PROCESS
A. Abusing Discovery Procedures:
L must not make a frivolous discovery request, or fail to make reasonable efforts to comply with a legally proper discovery request made by the adversary.
B. Violating Court Rule or Order - FOLLOW COURT ORDERs unless making a good faith challenge
A lawyer must not violate a court rule or order. However, a lawyer may openly refuse to obey for the purpose of making a good faith challenge to its validity.
C. Using Threats to Gain Advantage in CIVIL Case
Cannot Threaten criminal, administrative, or disciplinary charges for the purposes of GAINING an ADVANTAGE for the C in a CIVIL case. if the lawyer believes in good faith that the adversary is engaging in illegal or unethical conduct, this rule does not prohibit a lawyer from stating that they will present charges if the conduct continues. Nor does the rule prohibit actual reporting of the violation. Just don’t threat.
TRIAL PUBLICITY
• CANNOT make PUBLIC statements that would MATERIALLY PREJUDICE the case.
RULE: A L who is connected with a case (or any associated lawyer in their firm or agency) must not make any extrajudicial statement that the lawyer reasonably should know:
(1) will be PUBLICLY DISSEMINATED and
(2) will have a substantial likelihood of materially prejudicing the case.
However, certain dry facts about the case are permitted.
EXCEPTION - Right of Reply: L can reply to protect C from prejudice initiated by someone else.
L is permitted to make a public statement that a reasonable lawyer would believe is required to protect a Ç from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. For example, if the other side gave a press conference and said something prejudicial about the client, the lawyer can respond with a clarification.
EXAMPLES:
PERMITTED REFERENCES in
Civil and Criminal:
- The claim, offense, or defense involved Information contained in the public record That an investigation is in progress
- The scheduling or result of any step in litigation
- A request for assistance in obtaining evidence
- A warning of danger concerning the behavior of a person if there is likelihood of substantial harm to an individual or the public interest
Criminal:
- The fact, time, and place of an accused’s arrest
- The identity of investigating and arresting officers or agencies
UNPERMITTED REFERENCES - References Likely To Have A Prejudicial Effect:
CIvil and Criminal:
- The identity of Ws or the expected testimony of a party or witness
- Statements relating to character, credibility, reputation, or criminal record of a party, suspect, or witness
- The identity or nature of physical evidence expected to be presented
- The performance or results of any examination or test, or the refusal of a person to submit to examination or testing
- Information the lawyer knows is likely inadmissible at trial and creates a substantial risk of prejudice
CRIMINAL:
- The fact that a defendant is charged with a crime unless accompanied by an explanation that he is presumed innocent
- Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case
OTHER DUTIES TO NON-CLIENTS
L’s dealings with people who aren’t clients (including opposing counsel, adverse parties, witnesses, and anyone else the lawyer talks to in relation to the repre- sentation). Truthfulness and fairness are at the core of these rules.
A. TRUTHFULNESS IN STATEMENTS TO OTHERS
i. No False Statements of Material Fact
ii. Disclosing Material Facts to Address Client’s Crime or Fraud
B. COMMUNICATING WITH A PERSON WHO IS REPRESENTED BY COUNSEL
C. COMMUNICATING WITH AN UNREPRESENTED PERSON
D. LAWYER AS THIRD-PARTY NEUTRAL
E. ACTING AS ADVOCATE IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS
F. RESPECT FOR RIGHTS OF OTHERS
TRUTHFULNESS IN STATEMENTS TO OTHERS
A. No False Statements of Material Fact
L must not make a false statement of material fact to a third person in the course of representing a client.
- However, “puffery” is allowed and is not considered a statement of material fact.
Puffery includes (1) estimates of price or value and (2) statements of a party’s intentions as to settlement.
B. Disclosing Material Facts to Address Client’s Crime or Fraud
L must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud—UNLESS L is forbidden to do so by the ethical duty of confidentiality.
Where the duty of confidentiality prevents the lawyer from disclosing material facts, and where continued representation would require the lawyer to assist in the client’s crime or fraud, the lawyer must withdraw.
COMMUNICATING WITH A PERSON WHO IS REPRESENTED BY COUNSEL
In the course of representing a client, L must NOT communicate about the subject of the representation with a person they know to be represented by counsel in the matter (whether or not they are a party to the matter), UNLESS:
• The person’s counsel has granted permission; or
• L is authorized by law or court order to make the direct communication
BUT, this rule does not prohibit: (1) conversations on topics unrelated to the matter; or (2) communications between the parties (and the lawyer can advise their client on such communications).
CA: does not prohibit a lawyer from communicating with a public official or public entity.
Application of Rule to Represented Organizations: Must get consent of org’s counsel before communicating with current employees, prohibition will apply to high-level employees and employees whose conduct is at issue in the matter.
ABA:
L must get the consent of the organization’s counsel before communicating with a CURRENT employee or other constituent of the organization who falls within any of the following categories:
• The person supervises, directs, or regularly consults with the organization’s L concerning the matter;
• The person has AUTHORITY TO OBLIGATE the organization with respect to the matter; or
• The person’s act or omission in connection with the matter may be IMPUTED to the organization for purposes of civil or criminal liability
BUT NOTE: if the person has their own counsel in the matter, then consent from the person’s counsel is sufficient.
CA - Organizations: does not refer to the first and second categories, but similarly provides that the rule applies to any current officer, director, partner, or managing agent of the organization. It also applies to the third category of constituents listed above - The person’s act or omission in connection with the matter may be IMPUTED to the organization for purposes of civil or criminal liability.
COMMUNICATING WITH AN UNREPRESENTED PERSON
Can communicate with unrepresented person.
• CANNOT act DISINTERESTED
• If person and C have CONFLICTING interests, L CANNOT give person legal advice (just advise to get counsel).
RULE: When a person doesn’t have counsel of their own (or if the person is represented but L has no reason to know that), L representing a C MAY communicate with such person directly about the matter.
However, such communications are subject to the following restrictions:
• L must not state or imply that they are disinterested.
• If the unrepresented person misunderstands L’s role, the lawyer must make reasonable efforts to correct the misunderstanding.
• If the person’s interests conflict with the C’s interests, the lawyer must not give any legal advice (except that the lawyer may advise the person to obtain counsel).
CA: additionally provides that when communicating with an unrepresented person on behalf of a C, L must not seek to obtain privileged or otherwise confidential information that the L knows or reasonably should know the unrepresented person cannot reveal without violating a duty to another, or which the lawyer is not oth- erwise entitled to receive.
LAWYER AS THIRD-PARTY NEUTRAL
•Must CLARIFY Non-Lawyer role.
A lawyer who serves as a third-party neutral must inform unrepre- sented parties that the lawyer is not representing them.
Where the lawyer reasonably should know that a party does not understand the lawyer’s role, the lawyer must explain the difference between a lawyer’s role as third-party neutral and a lawyer’s role as one who represents a C (for example, lack of attorney-client privilege when a lawyer is acting as a third-party neutral).
ACTING AS ADVOCATE IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS
•Make it clear that L is appearing in a representative capacity (dont need to disclose C’s identiy).
Lawyers sometimes appear before legislatures, city councils, execu- tive agencies, regulatory boards, and other groups that act in a rule-making or policy-making capacity. If a lawyer is representing a client in connection with an official hearing or meeting of a govern- mental agency or legislative body at which the lawyer or client is presenting evidence or argument, the lawyer must disclose that the appearance is in a representative capacity (but need not disclose the client’s identity).
Additionally, the lawyer must generally act as if they were in front of a court (for example, they must not offer false evidence, make false statements, attempt to improperly influence the decision-makers, obstruct access to evidence, and so forth).
RESPECT FOR RIGHTS OF OTHERS:
A. Receipt of Documents or Electronically Stored Information Sent by Mistake
B. Heavy-Handed Tactics
A. Receipt of Documents or Electronically Stored Information Sent by Mistake:
When a lawyer obtains such a document or electronically stored information relating to the representation of the lawyer’s client, and when they know or reasonably should know that it was sent by mistake, they MUST
• promptly NOTIFY the sender so that the sender can take protective measures.
CA:
- Rule applies ONLY to privileged writing or work product.
It only applies when the receiving lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine.
- Also requires L to stop reading.
In addition to notifying the sender, the receiving L must refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine.
- receiving lawyer should either return the writing to the sender, seek to reach an agree- ment with the sender regarding disposition of the writing, or seek guidance from a tribunal.
NOTE: If a document was sent intentionally, the receiving lawyer is free to mine the metadata.
B. Heavy-Handed Tactics
In representing a C, L must not use means that have no substantial purpose other than to embarrass, delay, or burden
a third person. Additionally, a L must not use methods of obtaining evidence that violate a third person’s legal rights (for example, attorney-client privilege).
CA: California did not adopt this rule
