Litigation + Other Advocacy

Question 1

Avoiding Improper Influence

Answer 1

Must not seek to influence a judge, juror, prospective juror, or other official by means prohibited by law

Question 2

Conduct in Course of Litigation

Answer 2

Duty to Avoid Frivolous Claims

Duty of Candor to the Tribunal

Duty of Fairness to Opposing Party/Counsel

Question 3

Duty to Avoid Frivolous Claims

Answer 3

Prohibited from asserting or defending an action or issue unless there is a basis in law and fact

MR: Claim brought to embarrass, delay, or burden third person is violation of the rules
CA: Lawyer must not bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal without probable cause and for the purpose of harassing or maliciously injuring a person

Question 4

Duty of Candor to the Tribunal

Answer 4

Must not knowingly make a false statement of law or fact. If they do, must correct it.

Question 5

Duty of Fairness to Opposing Party/Counsel

Answer 5

Evidence: must not unlawfully obstruct another party’s access to evidence

Witnesses:
(i) may not request witness refrain from speaking to another party;
(ii) may pay a non-expert witness reasonable expenses related to testifying;
(iii) Expert witness must be paid reasoable rate and compensated for reasonable expenses

CA: May not pay expert contingent on testimony or outcome of the case, but may advance fees and expenses

Question 6

Client Fraud and Perjury by a Client

Answer 6

Must not falsify evidence and may not counsel witness to testify falsely or assist witness in testifying falsely

Question 7

False Evidence

Answer 7

Prohibited from knowingly (actual knowledge) offering false evidence and may refuse to submit evidence she reasonably believes is false

Question 8

Learning of False Evidence After Offered

Answer 8

Must take reasonable remedial measures:
(i) Urge client to correct false statement/evidence. If they refuse, withdraw from representation (if possible)

If withdrawal is not allowed,
MR: disclose false evidence to the court, even if it requires lawyer to reveal otherwise protected client information
CA:

Question 9

Criminal Defendants

Answer 9

Attorney can refuse to offer criminal defendant’s testimony if he has actual knowledge it is false (reasonable belief is not enough)

If he knows it is false, must urge client to correct false statement or evidence. If client says no, must withdraw.

If withdrawal is not possible:
MR: Lawyer must disclose false evidence to court, even if it divulges confidential information
CA: Lawyer can question defendant until the point of falsehood, then allow testimony by narrative without asking questions

Question 10

Communications in Course of Representation

Answer 10

Clients

Jurors

Persons represented by counsel

Organizations represented by counsel

Persons unrepresented by counsel

Trial Publicity

Question 11

Communications in Course of Representation - Clients

Answer 11

Have a duty to regularly communicate with clients, inform about case and answer questions

Must communicate settlement

Question 12

Communications in Course of Representation - Jurors

Answer 12

Not permitted to communicate with jurors outside of court before or during proceedings

Question 13

Communications in Course of Representation - Persons represented by counsel

Answer 13

Not permitted to communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer without consent

If represented person contacts lawyer, lawyer must terminate communication upon learning of other representation

Question 14

Communications in Course of Representation - Organizations represented by Counsel

Answer 14

Lawyer generally prohibited from communicating with a constituent of an organization

Consent is NOT required to communicate with former constituent

Question 15

Communications in Course of Representation - Persons Unrepresented by Counsel

Answer 15

Attorney must not give legal advice and make it clear who the lawyer represents

May negotiate terms of a transaction or settlement agreement with unrepresented person

Question 16

Communications in Course of Representation - Trial Publicity

Answer 16

A lawyer is not permitted to make an out of court statement that he knows/should know…
(i) will be distributed publicly and (ii) will have a substantial likelihood of materially prejudicing the court proceeding.

CAN discuss…
General facts about the case, like the claims and identity of the parties

Lawyer may make a statement to protect a client from the prejudicial effect of publicity that was not initiated by the attorney or client.
In criminal trials, out of court statements are more likely to be prejudicial.

Question 17

Special Prosecutor Duties

Answer 17

*Must not prosecute a charge he knows is not supported by probable cause

*Required to timely disclose all exculpatory evidence and information that tends to disprove guilt or mitigate offenses

*Must disclose new, credible evidence that creates a likelihood that convicted defendant did not commit offense (exoneration)