Limitations on Zealous Representation

Question 1

Frivolous claims

Answer 1

Rule 3.1 prohibits lawyer from bringing frivolous claims

FRCP 11: Prohibits the filing of any document without a good faith basis for believing that the factual and legal claims it makes are well grounded

Rule 2.1 - Candid Advice
- lawyer has obligation to inform client that they are bringing a frivolous action

Question 2

Entity Clients No Contact Rule - Niesig

Answer 2

Three categories of employees who should be subject to the no-contact rule:

(1) Representatives of the organization who supervise, direct, or regularly consult with the organization’s lawyer concerning the matter
(2) Representatives who have the authority to obligate the organization in the matter, and
(3) Representatives whose acts or omissions in the matter may be attributed to the organization to establish civil or criminal liability

Rule: When an organization is a party to a lawsuit, opposing counsel is prohibited from having direct communication with employees whose acts or omissions affect the organization’s legal status in the matters at issue

Question 3

When an attorney wants to interview a member of the entity client, the attorney must

Answer 3

(1) identify who you are and who you are representing
(2) ask the employee if they are represented by counsel - if they are then stop
(3) inform them that you are only seeking information and that you are not in the position to and cannot provide legal advice to them

Must not

(1) ask any questions relating to conversations they had with their counsel
(2) threaten, harass, insist - if they want to talk they will

Question 4

Discovery Abuse

Answer 4

A lawyer shall not:

(1) make unnecessarily broad discovery requests with the design to bury a firm with less resources
(2) Withhold information that the other side may otherwise be entitled to receive
(3) Engage in any abusive behavior

Question 5

Inadvertent Disclosures

Answer 5

Most states follow FRCP 26(b)(5)(B):

(1) Receiving lawyer must return, sequester, or destroy the information
(2) Can’t disclose or use the information until the question of what you can do with it is resolved by the court
(3) If you did already disseminate it, you have to take reasonable steps to retrieve the information

Question 6

Negotiations

Answer 6

Rule 4.1 - Cmt. 2
- under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statement of material fact. Estimates of price or value placed on the subject of a transactions and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category

Question 7

Communication with Jurors after a case is over

Answer 7

Model rules don’t address this situation, so you have to heck with the local jurisdiction - never assume that you can talk to them without permission
- model rules do not require permission, but the best thing to do is ask the court for permission

Question 8

Adverse Controlling Law - Rule 3.3

Answer 8

Controlling Jurisdiction

• supreme court for all cases
• same state for state law issues
• same district or circuit court for federal issues

Question 9

Request for Brady Material vs. Model Rule

Answer 9

Exculpatory evidence - if the prosecutor is in possession of evidence that can demonstrate the absence of the defendant’s guilt, the prosecutor has the obligation to disclose if pursuant to a brady demand

Model Rule 3.8(d)

• the prosecutor in a criminal case shall: 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 mitigates the offense
• more of an obligation to disclose under the model rules than under the constitution (Brady)

Question 10

United States v. Talao - Factors Relevant in determining whether communications pre-indictment are authorized by law

Answer 10

(1) Does an adversarial relationship exist
- has the gov’t notified the target of the investigation that they are a target/issued a subpoena?
(2) Did the informant or the government initiate the communication?
(3) Does the communication involved demonstrate evidence of perjury or obstruction of justice?
- did the witness say anything like “they wanted me to destroy records”?
(4) Does defense counsel suffer from a conflict of interest because the informant is offering evidence of criminal activity adverse to the interests of the other clients represented by counsel?
(5) Has the government given appropriate warnings of the person’s right to retain substitute counsel?
(6) Has the government engaged in misconduct in connection with the communication, such as misrepresentation, coercion, or attempts to obtain attorney-client communications?

Question 11

Prosecutorial Vindictiveness

Answer 11

Generally, if a prosecutor, increases or brings additional charges subsequent to the defendant exercising their constitutional right, it constitutes prosecutorial vindictiveness
- It doesn’t matter whether it was actually PV, all that matter is that the appearance is created

Question 12

Witness Coaching

Answer 12

Lawyers have substantial leeway in helping to prepare a witness to testify so long as they don’t attempt to have a witness testify falsely

Rule 3.3 - Standard is that the lawyer has to KNOW that the witness’s testimony is false - so very hard to prove that the lawyer knows.

Rule 4.4 - can’t help a witness testify falsely and can’t request a person other than a client to refrain from voluntarily giving relevant info to another party unless