PR III. Duty to Court Flashcards
III. THE ATTORNEY’S DUTY TO THE COURT
A. The Duty of Candor
Includes but is not limited to:
1. Duty to not knowingly offer false evidence
2. Duty to not further perjury
B. The Duty of Honesty
C. The Duty to Witnesses and Jurors
A. The Duty of Candor (Candor to the Tribunal)
A. The Duty of Candor
Includes but is not limited to:
1. Duty to not knowingly offer false evidence
2. Duty to not further perjury
L is required to present the law, facts, and evidence to the tribunal in a truthful manner.
* “tribunal” means a court, an arbitrator in a binding arbitration proceeding, or a legislative body or administrative agency acting in an adjudica- tive capacity (that is, making a binding legal judgment after hearing evidence).
A. Stating law and facts:
B. False Evidence
Stating law and facts:
L is required to present the law, facts, and evidence to the tribunal in a truthful manner.
* “tribunal” means a court, an arbitrator in a binding arbitration proceeding, or a legislative body or administrative agency acting in an adjudica- tive capacity (that is, making a binding legal judgment after hearing evidence).
A. Stating law and facts:
• A lawyer must not knowingly make a false statement of fact or law to the tribunal.
• Affirmative Duties:
a. must CORRECT false statements: If the lawyer previously made a false statement of material fact or law, the lawyer must correct their statement.
b. in EX PARTE proceedings, disclose all material facts. As General rule, L is under no obligation to volunteer a fact that is harmful to their client’s case. However, in an ex parte proceeding (meaning, where the other side is not present), the lawyer must inform the tribunal of all material facts known to the lawyer that will help the tribunal make an informed decision.
c. dislcose controlling legal authority if Directrly adverse and opp hasnt done it.
L must not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction that is directly adverse to the client’s position and that has not been disclosed by opposing counsel.
CA: The California rule also specifically prohibits a lawyer from know- ingly misquoting to a tribunal the language of a book, statute, decision, or other authority.
False Evidence —Perjury by someone OTHER than Criminal Defendant Client
*** special rules apply to false testimony by a criminal defendant client
a. Knowledge of Falsity—Must Not Offer
In a matter pending before a tribunal, the lawyer must refuse to offer evidence that they KNOW is false. (but distinguish ACTUAL knowledge).
b. Reasonable Belief in Falsity—Usually May Refuse to Offer
If a lawyer doesn’t know, but REASONABLY BELIEVES that testimony or other evidence will be false, the rule becomes permissive. L MAY refuse to offer evidence that they reasonably believe is false, except for a criminal D’s testimony on their own behalf.
c. Taking Reasonable Remedial Measures - (L later discovers E is false).
If L has offered evidence and later discovers that it’s false, they must take the following reasonable remedial measures:
• Step 1: Urge the client to cooperate in withdrawing or correcting it
• Step 2: If unsuccessful, seek to withdraw from case if necessary, and/or take other measures to strike the evidence (often, withdrawal won’t work because the next attorney would have to deal with the same problem)
• Step 3: If all else fails, disclose the situation to the judge, even if that means disclosing information that would be protected by the duty of confidentiality. (No con’l right to perjury).
CA - BIG RULE: The CA rule provides that reasonable remedial measures MUST NOT involve revealing information that is protected under the duty of confidentiality.
(AKA, the ABA rule provides that the duty of candor to the tribunal supersedes the duty of confidentiality, and the California rule takes the opposite view.)
False Evidence—Perjury by Criminal Defendant Client
defendant has a Fifth Amendment constitutional right to testify and a Sixth Amendment right to the effective assistance of counsel.
If L only reasonably believes that the criminal D’s testimony is false, then they HAVE TO let the D testify.
If L KNOWNS that the criminal D intends to testify falsely (or has already done so), L must take measures similar to the “reasonable remedial measures” above: (1) try to persuade the client not to testify falsely or to recant the false testimony; (2) consider withdrawal; and (3) if all else fails, reveal the situation to the judge.
•CA: Instead of telling jduge, have C testify in narrative form, do not faciliate testimony just let C go on).
CA: L may offer the D’s testimony in a narrative form if the lawyer (1) has made reasonable efforts to dissuade the client from testifying falsely and (2) has unsuccessfully sought permission to withdraw.
Narrative form: defense L questions the D in the ordinary way up to the point of the false testimony. At that point, the defense L asks a question that calls for a narrative answer (“What else happened?”). The D then tells their story. The defense L is not permitted to rely on the false parts of the story when arguing the case to the trier of fact.
Duration of Candor Obligations
These duties of candor (correcting false statements; rectifying false evidence) continue until the end of the proceedings: when a final judgment has been AFFIRMED ON APPEAL or the time for appeal has EXPIRED.
FRIVOLOUS CLAIMS AND DEFENSES
General rule: L who is serving as an advocate in a legal proceeding must not take a position unless there is a basis in law and fact for doing so that is not frivolous. Position is NOT frivolous if the L can make a good-faith argument for an extension, modification, or reversal of existing law.
CRIMINAL: Defense L in criminal case can make prosecutor prove every necessary element of the case.
CA: prohibit L from bringing or continuing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person. Grounds for mandatory withdrawal.
EXPEDITING LITIGATION
L must make reasonable efforts to expedite litigation consistent with the interests of the client.
CA: Prohibits using means with NO OTHER PURPOSE than to delay.
CA doesn’t require a lawyer to “expedite” litiga- tion, but instead prohibits a lawyer from using means that have no substantial purpose other than to delay or prolong the proceed- ing or to cause needless expense.
PRESERVING IMPARTIALITY AND DECORUM OF TRIBUNAL
A. Improper Influence: A lawyer must not seek to influence a judge, court official, juror, or prospective juror by improper means.
B. Contact with Jurors
C. Trial Counsel as Witness
D. Chicanery at Trial
A. Improper Influence:
A. Improper Influence: A lawyer must not seek to influence a judge, court official, juror, or prospective juror by improper means.
CA: more specifically prohibits a lawyer from di- rectly or indirectly giving or lending anything of value to a judge, official, or employee of a tribunal except as permitted by statute, an applicable code of judicial conduct, or standards governing employees of the tribunal. This rule does not prohibit a L from contributing to a judge’s campaign fund.
B. Contact with Jurors
B. Contact with Jurors
a. DURING PROCEEDING - generally prohibited: L must not have any ex parte communication with a prospec- tive juror or juror except when authorized by law or court order.
CA - During Trial: Also,
• During jury selection and trial, a lawyer connected with a case must not communicate directly or indirectly with a prospective juror or juror about any subject (same as the ABA rule).
• During trial, a lawyer not connected with a case must not communicate directly or indirectly with a known juror about the case.
These rules also apply to jurors who have been individually removed or excused during the proceeding—contact will not be permitted until the entire jury has been discharged.
b. AFTER DISCHARGE of JURY:
L may generally interview discharged jurors or prospective jurors, unless:
(1) the communication is prohibited by law;
(2) the juror has made known a desire not to communicate; or
(3) the communica- tion involves misrepresentation, coercion, duress, or harassment.
CA - Before, During, and After trial:
• A lawyer is prohibited from conducting an investigation of prospective jurors and jurors in a manner likely to influence the state of mind of the person in connection with present or future jury service.
• All restrictions on contact with and investigations of prospective jurors and jurors also apply to the family members of such persons.
• A lawyer must promptly reveal to the court improper conduct by or toward jurors, prospective jurors, or their family mem- bers.
Trial Counsel as Witness
PROHIBITED: As a general rule, L must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.
EXCEPT- This dual role is permitted in any of the following situations:
• The trial lawyer’s testimony will relate solely to an UNCONTESTED issue;
• The trial lawyer’s testimony will relate solely to the nature and value of legal services they have rendered in the case; or
• Withdrawal would cause SUBSTANTIAL HARDSHIP to the client
NOTE - NOT IMPUTED: L may generally proceed as trial counsel if other Ls at their firm are likely to be Ws (there is no imputed disqualification).
CA: Instead of substantial hardship - conflict waivable with C’s informed written consent.
CA provides that the L may act as an advocate in the matter if the C provides informed written consent to the dual role (under the ABA rule, consent will not solve the problem)
“Chicanery” at Trial
Chicanery = trickery by L. (trial antics, stating personal opinion)
RULE: During a trial, a lawyer must not:
• Assert personal knowledge of facts
• Refer to inadmissible material
• State a personal opinion about the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused.
CA: does not include the prohibition on referencing inadmissible material at trial.
Additionally, the California rule ONLY prohibits statements of personal opinion concerning the guilt or innocence of an accused.
Disruptive Conduct
RULE: L must not engage in conduct intended to disrupt a tribunal. This rule applies in depositions as well as in the courtroom.
CA: do not include the above rule due to concerns that it is too broad and would not be interpreted in a consistent manner.
Extra - Duties to entites other than Client:
Duties to court, adversaries (parties and coiunsel) lega profession, third parties, and public
- Candor
- Fairness
- Dignity and decorum
- other reasonablew things
Clients love fierce counsel; Courts feel differently
CLFC CCFD
Candor, Fairness, Dignity & Decorum
