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Flashcards in Lawyer Roles & Third Party Communications Deck (20):
1

In rendering advice, are lawyers allowed to refer to non-legal considerations (ex. moral, social)?

Yes, lawyers shall exercise independent professional judgment and render candid advice. This includes referring to relevant moral, economic, social, or political factors.

Rule 2.1

 

2

May a lawyer provide an evaluation of a matter affecting a client for the use of a third person?

Yes, if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client.

Rule 2.3(a)

⚠️ Note: If the lawyer knows (or reasonably should know), that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. Rule 2.3(b)

3

Is information relating to an evaluation subject to the rules of confidentiality?

Yes, unless disclosure is required in connection with a report of an evaluation.

Rule 2.3(c)

4

What is a lawyer required to do when serving as a third-party neutral (arbitrator, mediator)?

Inform the unrepresented parties that the lawyer is not representing them. If the lawyer knows or suspects that the parties do not understand the lawyer's role as the abritrator/mediator, then the lawyer must explain the difference between their role and lawyer's role as one who represents a client.

Rule 2.4(b)

5

Can a prosecutor make an extrajudicial comment that has a substantial likelihood of heightening public condemnation of the accused?

Except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, these type of statements can only be made after the trial.

Rule 3.8(f)

6

What does a prosecutor need to do when presented with new exculpatory evidence after conviction that is clear and convincing?

  1. Promptly disclose that evidence to an appropriate court or authority, and
  2. If the conviction was obtained in the prosecutor’s jurisdiction,
    • Promptly disclose that evidence to the defendant unless a court authorizes delay, and
    • Undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit

Rule 3.8(g)

7

Can a prosecutor bring a charge that isn't supported by probable cause?

8

Can a prosecutor subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client?

No, unless the prosecutor reasonably believes:

  1. The information sought is not protected from disclosure by any applicable privilege;
  2. The evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
  3. There is no other feasible alternative to obtain the information

Rule 3.8(e)

9

Does the prosecutor need to disclose exculpatory evidence to the defense?

Yes, must make a timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.

Rule 3.8(d)

10

True or false: The prosecution does not have an obligation to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.

False. The prosecution must make reasonable efforts. Rule 3.8(b).

11

What must a prosecutor do if they know of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that they did not commit?

Seek to remedy the conviction. Rule 3.8(h).

 

12

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding must do what?

Disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a-c), 3.4(a-c), and 3.5.

Rule 3.9

13

True or false: A lawyer can make false statement of material fact or law to a third person to prevent a client's reputational harm.

False. Rule 4.1.

14

Can an attorney knowingly fail to disclose a material fact to a third person?

No, when the disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

Rule 4.1(b).

15

Can a lawyer communicate with a person who the lawyer knows is represented by another lawyer?

No, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Rule 4.2

16

In dealing on behalf of a client, how should a lawyer deal with an unrepresented person?

The lawyer shall not state or imply that the lawyer is disinterested. If the lawyers knows or should know that the person is confused about the lawyer's role, they shall make reasonable efforts to correct the misunderstanding.

Rule 4.3

17

Can a lawyer give legal advice to an unrepresented person?

No, the lawyer cannot give legal advice, beyond the advice to secure counsel, if the lawyer knows or reasonably should know that the person's interests are possibly adverse to the client's.

Rule 4.3

18

What should a lawyer do if they receive a document that they know, or should reasonably know, was sent inadvertently?

Promptly notify the sender in order to permit that person to take protective measures.

Rule 4.4, comment 2

19

If a lawyer receives a document that was sent inadvertently, do they need to delete or return the document?

Unless required by law, the decision to voluntarily return a document or delete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer.

Rule 4.4, comment 3

20

Does sending a document inadvertently constitute waiver of privilege?

Not addressed by the Rules, a matter for the court to decide.

Rule 4.4, comment 2