Limitations on Zealous Representation Flashcards
Why do we limit zealous representation?
To promote social interests in efficiency and procedural fairness.
In which areas do we limit zealous representation?
(1) Undertaking representation - frivolity
(2) Pretrial conduct
(3) Discovery
(4) ADR
(5) Trial tactics and publicity
(6) Prosecutors’ duties
What are attorneys’ key duties in undertaking representation?
(1) No frivolity, 3.1
(2) Expedite consistent with clients’ interests, 3.2
What’s the standard for frivolity?
Under FRCP 11. After reasonable inquiry under the circumstances, action is not frivolous if
(1) No improper purpose
(2) Legal contentions warranted
(3) Factual allegations backed by evidence
(4) Denials of facts must be warranted.
When is a purpose “improper”?
- Trying to harm or impose costs on the other side
- Coercing into settlement, White v. GM
Can a lawyer talk to the other client?
Anti-contact rule, 4.2, prevents communications with (1) a represented party (2) about that matter (3) without their counsel’s consent.
To be prohibited, lawyer must have “actual knowledge” that party is represented, Jorgenson v. Taco Bell.
Are there any exceptions to the anti-contact rule?
(1) Communications authorized by law, RST 99
(2) Client v. client contacts, RST 99(2)
(3) Emergency communications, RST 99 cmt. i.
Can plaintiff’s counsel speak with the defendant’s employees?
Under Niesig, can’t speak with:
(1) Those who supervise, direct or regularly consult with corporate counsel re: matter;
(2) Those with authority to obligate the org. in matter; or
(3) Those whose act/omission in matter may be attributed to organization for liability.
May counsel speak with the other side’s former employees?
Generally OK, unless
(1) “Extensively exposed” to CI, Camden v. Md.
(2) Continues to consult with corp. counsel, RST 102
What types of discovery abuse are common?
(1) Unnecessarily broad discovery requests
(2) Withholding info other side is entitled to
What are the general rules of discovery?
- Be fair to other side, 3.4
- No misconduct: frivolous requests or failures to reply, 3.4d
- No improper means, 4.4
How can a lawyer guilty of discovery abuse be punished?
- Fines
- Liberal cross of witnesses
- Striking affirmative defenses
- Exclusion of evidence
- DQ
- Dismissal
- Tort liability
What are the basic duties in responding to discovery requests?
- Reply to each interrogatory, FRPC 33b3
- State grounds for objection, 33b4
- If claiming privilege, log it, FRCp 26b5
- Can’t hide smoking guns, WA Physicians Case
What should you do if you were inadvertently sent something confidential?
Promptly notify the sender, 4.4b. Don’t read it, Rico v. Mitsubishi.
Does inadvertent disclosure waive privilege?
Apply the Elkton factors:
- Reasonableness of precautions taken
- Extent of disclosure
- Delay / measures taken to rectify disclosure
- Overriding interests of justice
If you inadvertently sent something in federal court, what should you do?
(1) Notify recipient of claim and basis of privilege
(2) Recipient should promptly return, sequester or destroy. May present to court for determination of claim, 26b5.
What happens if, in federal court, inadvertent sender fails to notify the recipient?
Negates “reasonable steps to recover” under FRE 502, so probably no privilege.
What duty binds lawyers in negotiations?
Honesty, 4.1: no knowingly (1) false statements of material fact/law or (2) failures to disclose a material fact if necessary to avoid helping client’s crime/fraud.
When does NC think a duty to disclose applies in settlement negotiations?
(1) Corrective disclosures, RST 98
(2) Scrivener’s error, Stare v. Tate
(3) Fiduciary duty, e.g. unrepresented party
(4) Good faith and fair dealing, e.g. mistake re: basic facts of deal.
What can you do if the other side is talking shit in the media?
Reply to extent reasonably necessary to protect client from prejudicial effect of publicity not initiated by lawyer/client, limited to mitigating, 3.6c; Gentile.
Can a lawyer say whatever they want about a pending case, outside of the courtroom?
No. Can’t say anything with a “substantial likelihood” of “materially prejudicing” the proceeding, 3.6a.
What can a lawyer always state about a pending case?
Safe harbors, 3.6b, allow:
(1) Claims / defenses / parties’ identities
(2) Anything in public record
(3) Investigation underway
(4) Scheduling / result of any step in litigation
(5) Request for assistance re: evidence
(6) Danger warnings of dangerous persons
(7) Criminal stuff
What can a lawyer never say about a pending case?
Sure shipwrecks, 3.6 cmt. 5:
(1) Character etc. of a party or witness; witness identity
(2) Criminal: contents of a statement etc. by defendant or suspect, or refusal to make one
(3) Performance on any test
(4) Personal opinion re: guilt / innocence
(5) Anything “likely to be inadmissible” as evidence
(6) Fact that defendant has been charged with a crime, unless merely an accusation + presumed innocent.
What kinds of trial tactics are prohibited?
- Improper contacts with jurors
- Improper jury selection
