Litigation and other advocacy

Question 1

Does a lawyer violate the rule against frivolous claims by asserting a position before fully substantiating all the facts?

Answer 1

It is NOT frivolous to: (i) assert a position without first fully substantiating all the facts; (ii) assert a position knowing that vital evidence can be uncovered only through discovery proceedings; and (iii) assert a position even though the lawyer believes that the position will not ultimately prevail.

Question 2

A lawyer generally must volunteer information to the court regarding controlling law that is directly

Answer 2

adverse to his client’s case if such information is not disclosed by the opposing counsel.

Question 3

An attorney is subject to discipline for knowingly making a false statement

Answer 3

**of fact to the court or for failing to correct a previously made false statement of material fact. However, an attorney is under no obligation to volunteer facts that are harmful to his client’s case.

Exceptions: However, in an ex parte proceeding, only one side is present and the other side has no opportunity to offer its version of the facts. Thus, a lawyer in an ex parte proceeding must inform the tribunal of all material facts known to the lawyer that will help the tribunal make an informed decision. When both sides are present, a lawyer does not need to volunteer harmful facts even when the opposing counsel fails to disclose the facts.

Question 4

May a lawyer refuse to offer evidence that she reasonably believes is false?

Answer 4

A lawyer may refuse to offer evidence that she reasonably believes is false, except for a criminal defendant’s testimony on his own behalf.

Question 5

Actions by a lawyer during a trial is sometimes permitted?

Answer 5

A lawyer may counsel a person not to voluntarily give information to an opponent or other party if the following conditions are met:

(i) the person is a client, or a relative, employee, or agent of a client; and (ii) the lawyer reasonably believes that the person’s interests will not be harmed by not volunteering the information.

Question 6

Actions by a lawyer during a trial that are never permitted?

Answer 6

A lawyer must not refer to inadmissible material during trial. Nor may a lawyer state personal opinions—e.g., as to the credibility of a witness or the guilt or innocence of the accused

Question 7

What is most likely a prohibited ex parte communication with a judge?

Answer 7

A lawyer must not make an oral statement regarding the merits of the case with the judge or other official before whom the matter is pending without giving adequate notice to the adversary.

Question 8

Generally, an unsolicited written communication to a judge is not ex parte if

Answer 8

a copy of the communication is timely sent to the opposing parties.

Question 9

May a lawyer act as trial counsel and serve as a witness in the same proceeding?

Answer 9

Yes, but the lawyer generally must not represent the client at trial if he is likely to be a necessary witness.

A lawyer may represent a client at trial and testify as a witness in certain instances: if the testimony relates to an uncontested matter or the legal services rendered in the case, or if withdrawal as trial counsel would cause a substantial hardship to the client.

Question 10

if the lawyer becomes aware that the defendant in a criminal case is about to testify falsely, what is the first step the lawyer should take?

Answer 10

First, the lawyer must try to convince the defendant not to testify falsely.

Second, if the defendant insists on testifying falsely, the lawyer should consider withdrawal, if that will solve the problem, but he is not required to immediately withdraw. Usually it will not solve the problem, either because the court will not permit withdrawal or because withdrawal will not erase or prevent the false testimony.

Third, only after all else fails, the lawyer must reveal the client’s plan to the judge, even if that means disclosing the client’s confidential information

Question 11

A frivolous argument is one that

Answer 11

Cannot be supported by a good faith argument under existing law AND cannot be supported by a good faith argument for changing existing law

Question 12

A lawyer owes a duty of candor to the tribunal. Under this duty, can a lawyer be disciplined for failure to correct a statement of material law that is false?

Answer 12

Yes, a lawyer must correct all previously made false statements of material law, This is true regardless of whether the attorney had a good faith belief that the statement was accurate at the time it was made.

Question 13

Is a lawyer subject to discipline for offering false evidence?

Answer 13

Only if the lawyer has actual knowledge of its falsehood

Question 14

Can a lawyer use threats against an adversary to gain an advantage in a civil case?

Answer 14

A lawyer may bring, or threaten to bring, criminal charges against her adversary to gain an advantage in a civil case, provided that the criminal and civil matters are closely related and that both the civil case and criminal charges are warranted by the law and the facts.

However, a lawyer must not threaten to report adversary counsel for a disciplinary violation in order to gain an advantage for her client in a civil case. If the adversary counsel’s disciplinary violation is the kind that must be reported, it should simply be reported and not used as a bargaining chip.

Question 15

which actions may a lawyer take relating to a member of the jury?

Answer 15

Investigate a potential juror’s background

Question 16

which actions a lawyer may not take relating to a member of the jury?

Answer 16

Before and during the trial of a case, a lawyer must not communicate outside of the official proceedings with a juror or member of the panel from which the jurors will be chosen. This rule forbids communication on any subject—even “small talk”—regardless of who initiated the communication.

After the trial is over and the jury is discharged, a lawyer must not communicate with a former jury member (or even a person who was a prospective juror) if any of the following conditions is met: (i) local law or a court order prohibits such communication; (ii) the juror has told the lawyer that he does not want to communicate; or (iii) the communication involves misrepresentation, coercion, or harassment.

Question 17

Which type of statement regarding a case is a lawyer authorized to make outside the courtroom?

Answer 17

A lawyer may make a public statement that a reasonable lawyer would believe is necessary to protect a client from the substantial undue prejudice of recent publicity not initiated by the lawyer or the lawyer’s client. However, a lawyer who is connected with a case must not make a public statement outside the courtroom that the lawyer reasonably should know would have a substantial likelihood of materially prejudicing the case.

Question 18

A lawyer must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. This is true even if she obtains

Answer 18

the client’s consent to the dual role.

Limited exceptions exist, including (a) testimony about an uncontested issue or mere formality; (b) testimony about legal services rendered in a case; and (c) where withdrawal of the lawyer would cause a substantial hardship on the client

Question 19

If one lawyer is a necessary witness at a trial and prohibited from serving as trial counsel, can another member of the lawyer’s firm serve as trial counsel?

Answer 19

Yes, provided the conflict of interest rules do not otherwise preclude the other lawyer from serving as trial counsel

Question 20

A lawyer must refuse to offer evidence that he knows

Answer 20

is false.

Question 21

When a lawyer in a civil matter learns that his client has testified falsely or is about to testify falsely, the lawyer’s path is clear. If the client hasn’t yet testified, the lawyer can’t

Answer 21

call the client to the stand.

Question 22

If the client has testified and the lawyer learns that the testimony is false, the lawyer must

Answer 22

take reasonable remedial measures (try to persuade the client to cooperate in withdrawing or correcting the false evidence; consider withdrawal; and disclose the situation to the judge if all else fails).

Question 23

A lawyer may refuse to offer evidence that she

Answer 23

reasonably believes is false, except for a criminal defendant’s testimony on his own behalf.

Question 24

a negligent failure to investigate the evidence will

Answer 24

not result in discipline.

Question 25

The duty to rectify false evidence continues

Answer 25

until the end of the proceedings, which means when a final judgment has been affirmed on appeal or the time for appeal has expired

Question 26

Paying a witness’s reasonable travel expenses is generally

Answer 26

permitted.

Question 27

A lawyer may pay a reasonable fee to what type of witness?

Answer 27

to an expert witness for preparing to testify and for testifying. However, the fee can’t be contingent on either the content of the testimony or the outcome of the case. Thus, a victory bonus would be improper.

Question 28

What cant a lawyer discuss in a public announcment?

Answer 28

A lawyer connected with an investigation or litigation of a matter must not make a public statement outside the courtroom that the lawyer reasonably should know would have a substantial likelihood of materially prejudicing the case. For example, the lawyer must not discuss the character or credibility of a party or witness, the performance or results of an examination, the possibility of a guilty plea, or the existence or contents of a confession. The statement about the lie detector test is prohibited because it involves the results of an examination.

The rule above applies equally to other lawyers who are associated in a law firm or agency with the lawyers participating in the case

Question 29

Notwithstanding the general rule against prejudicial statements, a lawyer connected with the case may publicly state certain

Answer 29

“dry facts” about the case. These include, among other things, the scheduling or result of any step in litigation (such as how the judge ruled on a motion), any matter contained in a public record, the time and place of a criminal defendant’s arrest, and so on.

A lawyer can also make a public statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.

Question 30

Sending a paralegal to talk to a juror is?

Answer 30

a violation of the rules. A lawyer must not use another person to violate the rules of professional conduct. Because a lawyer isn’t permitted to speak with a juror during the case, it follows that the lawyer can’t send an agent to talk to the juror.

Question 31

T or F: The client’s consent is irrelevant to whether the lawyer may serve as both trial counsel and witness.

Answer 31

True

Question 32

Lawyers may not delay a case if the delay serves

Answer 32

no substantial purpose other than to delay the case or frustrate the opposing party.

example: The lawyer believed that the delay would frustrate the plaintiff, which would lead to the plaintiff accepting a lower settlement offer.

Question 33

What can justify a request for extension?

Answer 33

1) The lawyer was overwhelmed with work from other cases.
2) The lawyer had a vacation scheduled during the upcoming month.
3) The lawyer’s client had not responded in a timely manner to the lawyer’s request for documents.

Question 34

Although lawyers cannot offer a witness an inducement or incentive to testify, lawyers may compensate a witness for

Answer 34

reasonable expenses incurred by having to testify.

Question 35

A lawyer cannot offer a personal opinion as to a

Answer 35

defendant’s guilt or innocence at trial.

Question 36

An attorney may not bring or defend a proceeding, or make an argument on appeal, unless there is a

Answer 36

basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.

Question 37

An attorney may not obstruct another party’s access to a witness or evidence or request a person other than a client to refrain from voluntarily giving relevant information to another party unless the person

Answer 37

is a relative or an employee or other agent of a client.

Question 38

An attorney may not communicate ex parte with a judicial official about the merits of a pending case during a proceeding unless

Answer 38

authorized to do so by law or court order.