Lawyers Responsibility to the Court
Rule 3.3 Candor Towards the Tribunal
(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or ... (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
When does a lawyer have a duty to correct a false or misleading fact?
When it is made by 1. The lawyer 2. lawyers client 3. lawyers witness
Do you have a duty to correct false statements of material fact or law?
Yes
Do you have to disclose all the relevant facts in an exparte proceeding?
Yes, Only one side of the matter is represented in an ex parte hearing. The danger is that the tribunal will hear only one version of the story and a just result will not occur. Yet, the tribunal's objective is a just result. In such a setting, a lawyer has an increased duty of candor with regard to the disclosure of relevant facts. Rule 3.3(d) requires a lawyer who participates in an ex parte proceeding to disclose all known material facts "that will enable the tribunal to make an informed decision," even if the facts are harmful.
Can a lawyer fail to expedite a case for personal reasons?
Yes, as long as it is not done routinely. For example you can if your child is sick
If you find legal authority that is directly adverse to your case, do you have to present it to the court?
Yes, but only if it is known, there is no punishment for unknowing failure to disclose
If the client wants you to present evidence that you reasonably believe is false can you refuse to present it?
Yes, but then the client can terminate the lawyer client relationship if you refuse
Can a lawyer take a position in furtherance of a clients goals even if the lawyer believes that the client will lose in the end?
Yes, but you cannot bring about claims that are frivolous in nature (have no basis in law or fact)
Does a lawyer have a ethical duty to expedite litigation?
Yes, you can be subject to discipline if you do not fulfill this obligation
Can a lawyer state their opinion on the guilt or innocence of their client?
NO, this if for the trier of fact to decide
Can you out a witness on the stand if you know they are going to lie?
NO, this would be knowingly presenting false information
Can you talk to a juror outside of the court room if you are not talking about the case and are in a public area?
NO, you cannot have any interface with jurors no matter what You can however talk with jurors after the completion of a case
Can you fail to expidate a case in order to frustrate your opposing counsel?
No, comment to 3.2 states failing to expedite a litigation matter will not "be reasonable if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose."4 The comment notes that the analysis should focus on whether the course of action has "some substantial purpose other than delay."5 The comment further warns that if the delay is "otherwise improper," realizing financial or other benefit "is not a legitimate interest of the client."6
What two ways can you be considered not having candor to the tribunal?
1. Outright lying 2. Omission of information: Comment 3 to rule 3.3 states "There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.
To whom to you owe a duty to expedite proceedings?
1. The client 2. As an officer of the court, the court
If your client has told you they are going to lie on the witness stand during a criminal trail what are you supposed to do?
1. The client has a constitutional right to testify, if you know they are going to testify falsely then you are not allowed to ask them questions, and you cannot bring up what they said on the stand in your closing argument 2. Or withdraw
A lawyer represented a man who was charged with criminal trespass in a protest against recent actions by local law enforcement authorities. The man believed that he was exercising his first amendment rights to carry a large sign challenging recent police conduct. Unfortunately, the prosecutor's case was strong against the man because a lawful curfew had been established by the city and barriers were in place warning citizens from entering the public area. The lawyer thought that the judge and the jury might be swayed if they witnessed public support for the man's case. The lawyer asked fifty citizens from the community to attend the proceedings and to express their feelings through one staged verbal outbursts. During the proceeding, the citizens were to shout loudly, "Give this citizen his rights to express his first amendment views. How has he harmed anyone?" The lawyer knew that the citizens would be asked by the court to stop such outbursts or else they would be removed from the courtroom. But the lawyer reasonably believed that it was extremely unlikely for anyone of them to face any legal issues from the public demonstration. The lawyer did not ask his client for permission to stage this public protest in the courtroom. Did the lawyer violate the Model Rules in asking citizens from the local community to make this public statement in court? A Yes, because the lawyer engaged in conduct intending to disrupt a tribunal. B Yes, because the lawyer did not ask his client to stage the public protest in the courtroom. C No, because the lawyer thought that the judge and the jury might be swayed if they witnessed community support for his client. D No, because the lawyer reasonably believed that it was extremely unlikely for any one of the citizens to fact any legal issues from participation in the public demonstration.
A Attorneys may not disrupt the courtroom. They are officers of the court. This lawyer violated Model Rule 3.5(d) when he staged a public protest during the judicial proceedings.
A lawyer represented a plaintiff in litigation against a supply company. The case was on the eve of trial, and jury selection was about to take place when the lawyer's grandmother died. The lawyer asked the court for permission to delay the case one day so that she could attend services for her grandmother. Is the lawyer's request for delay consistent with the Model Rules? A Yes, because it is proper to request a delay based upon the lawyer's personal situation. B Yes, because attorney and litigants can ask and routinely obtain delay for any reason. C No, because the request is based upon a justification based solely for the convenience of the advocate. D No, because the request for delay directly impacts the court's schedule for trial.
A Model Rule 3.2 creates a duty to expedite litigation. Comment 1 addresses the concept of delay based upon a lawyer's request, and it says that normally advocates should not routinely ask for delay. But it does contemplate postponement for personal reasons and the death of a relative clearly falls within this concept of permissible requests.
A lawyer represented a corporate defendant in a products liability lawsuit. The plaintiff has requested that the defendant's law firm turn over all memos prepared for the defendant based upon a need to obtain nonprivileged information that the company no longer has in its possession. The lawyer then refused and then the court ordered the lawyer to produce the memorandum. The lawyer still refused openly did so on the grounds that the court had erred in its analysis. The lawyer requested an interlocutory appeal on this issue to protect the corporation's privileged information. Is the lawyer's refusal to produce the memorandum consistent with the Model Rules? A Yes, because the lawyer openly disobeyed the court order on the grounds that it was in error and sought to appeal the court's ruling. B Yes, unless the lawyer loses on appeal. C No, because the lawyer failed to follow a court order after full briefing and argument. D No, because the lawyer failed to withdraw from the representation so that another lawyer could challenge the production of the memorandum.
A The Model Rules require a lawyer to comply with a court order unless the lawyer resists the order on an open refusal based upon an argument that no valid obligation exists. Here the lawyer did this very act - open refusal based upon a request for an appeal on the merits of the judge's ruling. See Model Rule 3.4(c).
Lawyer represented Plaintiff in a contract dispute with Supplier. The case was filed in State One and the dispute focused upon the interpretation of a flexible pricing clause. During the trial, the State One high court decided a case with a similar flexible pricing clause that favored the Supplier. The court and the lawyer for Supplier did not know about the recent decision because it had not been widely publicized. The lawyer told his client, Plaintiff, about the adverse legal authority, and the Plaintiff told lawyer not to directly address this adverse legal authority. Plaintiff told the lawyer to cite the case in a footnote of a memorandum without any discussion. The lawyer followed the Plaintiff's direction and no one bothered to look up the case. After deciding for the Plaintiff, the judge learned about the high court case and expressed anger towards the lawyer. Was the Plaintiff lawyer's decision to cite the case without discussion consistent with the Model Rules? A Yes, because the lawyer disclosed the adverse legal authority to the tribunal. B Yes, because the lawyer had no duty to cite adverse cases in his memorandum. C No, because the lawyer did not address the merits of the high court decision in his court filing. D No, because the lawyer did not present an impartial exposition of the law in his brief.
A Model Rule 3.3(a)(2) requires that a lawyer disclose, but need not discuss, adverse legal authority in the controlling jurisdiction that is not disclosed by the opponent. Here the citation, with the indication that it is contrary authority, is all that is required.
A lawyer represented a former police officer charged with selling automatic weapons in violation of federal law. The defendant was arrested in an undercover sting in which he allegedly offered to modify a weapon so as to make it automatic in violation of the law. The defendant consistently told his lawyer that he never made such weapons and would not do so in this case, but that he was framed by his former employer. The lawyer thought the defendant might be lying but did not know with any degree of certainty. The lawyer let the defendant take the stand and asked him about his involvement in the alleged crime. The defendant denied all wrongdoing and the lawyer did not inform the tribunal about his suspicions. Was the lawyer's decision not to inform the judge consistent with the Model Rules? A Yes, because the lawyer did not know that the defendant was lying on the stand. B No, because the lawyer allowed the defendant to take the stand. C No, because the lawyer thought the defendant might be lying about his involvement in the sale of automatic weapons. D No, because the lawyer knew that the prosecution relied upon an undercover informant who had lured the defendant into offering an automatic weapon for sale.
A Model Rule 3.3(a)(3) and (b) requires knowledge by the lawyer that the client has lied to the court on the stand. Suspicion is not enough. If the lawyer had no knowledge that the client committed the crime and planned to lie on the stand, the lawyer does not have a duty to take reasonable remedial measures.
A lawyer represented a criminal defendant who had hit a pedestrian while driving a car and who then fled from the scene of the crime. The police have not yet found the hit and run driver and the defendant asked the lawyer for advice. The lawyer told the defendant to take his car and to park it in a barn (defendant lives on a farm) and cover up the car with hay. He added not to take the car to any body shops because the police would be looking for a car with front damage. Did the lawyer's advice to the defendant violate the Model Rules? A Yes, because the lawyer's advice to the client counseled the concealment of the car having potential evidentiary value. B Yes, because the lawyer should not have accepted a representation of a person who fled from the authorities. C No, because the lawyer had a duty of zeal in representing the criminal defendant. D No, because the lawyer did not tell his client to surreptitiously repair the car in any way.
A Model Rule 3.4(a) prohibits a lawyer from obstructing another party's access to evidence or unlawfully alter, destroy, or conceal anything of evidentiary value. Telling the client to park the car in a barn was obstructing access to the vehicle which had evidentiary value.
A lawyer represented a corporate defendant in a products liability lawsuit. The lawyer met with the design team of the product in question and examined the role of each employee. The lawyer asked the employees on this team not to voluntarily speak with any plaintiff, plaintiff's lawyer, or investigator about the product in question. The lawyer reasonably believed that the interests of the employees would not be adversely affected by refraining from providing such information. Did the lawyer's request to the employees on the design team comply with the Model Rules? A Yes, because the lawyer made the request to his client's employees and the lawyer determined that the interests of the employees would not be adversely affected by refraining from providing such information. B Yes, because the lawyer has a duty to advise nonclient witnesses whose testimony will favor his client to refrain from voluntarily giving testimony. C No, because the lawyer sought to obstruct another party's access to evidence. D No, because the lawyer did not offer to represent them personally if any issue arose from a failure to provide such information.
A Model Rule 3.4(f) permits a lawyer to request nonclient agents, employees, or relatives to refrain from cooperating with another party in the matter if the lawyer reasonably believes that the individual's interests will not be adversely affected. The lawyer in this case met both standards - the relationship to the client and the reasonable belief that the interests of the individuals would not be adversely affected.
A lawyer represented a tobacco company in all of its regulatory matters. The tobacco company asked the lawyer to represent it in a congressional investigation of cigarette use by minors. The company provided the lawyer with a summary of a study performed by a communications professor that showed few tobacco advertisements affect audiences under the age of 21. The lawyer presented the summary of the study to Congress and argued in testimony not given under oath that tobacco companies took seriously their responsibility of not attracting underage smokers. Several weeks after presenting the testimony, the lawyer learned from a tobacco company insider that the company's summary of the professor's study mischaracterized the results. The complete study noted that several advertising campaigns sought to attract underage smokers. In fact, the lawyer learned that the company had internal memorandums that confirmed its desire to market to teenagers. The lawyer sent a letter to Congress retracting his testimony and submitting a complete version of the study. The lawyer apologized to Congress for presenting misleading information earlier. Was the lawyer's correction of his testimony before the Congress required by the Model Rules? A Yes, because the lawyer learned that he had presented false and misleading information to Congress in a nonadjudicative proceeding. B Yes, because the lawyer did not testify under oath. C No, because the lawyer represented a client before Congress in a nonadjudicative proceeding, so the Model Rules do not require correction of the testimony. D No, because the Model Rules say that attorneys should not appear at all before legislative bodies investigating industry practices in nonadjudicative proceedings on behalf of paying clients.
A Model Rule 3.9 applies the requirement of honesty in Model Rule 3.3 to a lawyer's representation in a nonadjudicative proceeding. When the lawyer presented the summary of the study, he believed it was correct and accurate. When the lawyer learned that the testimony was false and misleading when submitted, the lawyer owed a duty to Congress to correct his false and misleading statements.
A client asked an employment lawyer to file a lawsuit against his employer who had fired all employees who went on strike because of a reduction in benefits. The client sought damages and a reinstatement of his employment. The lawyer researched the law and determined that every court that had examined such a discharge had held for the employer. The cases consistently dismissed employee lawsuits identical to the facts of this client. Those cases were affirmed uniformly by the appellate courts throughout the country, but the Supreme Court had never taken a case on this issue. The lawyer did not reasonably believe that he could make a good faith argument for an extension, modification, or reversal of existing law. The lawyer accepted the representation because he believed that every person deserved a day in court and filed the lawsuit for the client. The complaint disclosed to the judge that no court had ever held for the client on similar facts. Did the lawyer violate the Model Rules in filing this lawsuit? A Yes, because the lawyer filed a frivolous lawsuit. B Yes, because attorney disclosed to the judge that no court had ever held for the client on similar facts. C No, because the lawyer believed that every person deserved a day in court. D No, because the Supreme Court had never decided a case on this issue.
A Under Model Rule 3.1, a lawyer shall not bring or defend a proceeding unless there is a basis in law and fact that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. In this case, the lawyer did not believe that he could make such an argument, therefore the case is frivolous.
Can a lawyer pay their witnesses?
A lawyer can pay a reasonable fee to expert witnesses
Rule 3.2 Expediting Litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Rule 3.1 Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a 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... . A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Rule 3.5 Impartiality of the Tribunal
A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate or cause another to communicate ex parte with such a person or members of such person's family during the proceeding unless authorized to do so by law or court order; or (c) communicate with a juror or prospective juror after discharge of the jury unless the communication is permitted by court rule; (d) engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.
Rule 3.4 Fairness to Opposing Party and Counsel
A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or... . (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
What is the criminal law exception under rule 3.1?
Any proceeding that may result in incarceration of the client may "defend the proceeding as to require that every element of the case be established" For example: you can enter into a plea of not guilty even if you have no basis of whether or not your client is guilty
A lawyer represented a corporate defendant in a products liability lawsuit. The plaintiff has noticed a deposition of several corporate employees. The lawyer scheduled a meeting with the employees before the deposition to prepare them. The lawyer explained the deposition process, the law of products liability and theories the plaintiffs would have, and how they should only answer the questions asked. The lawyer asked the employees to tell the truth, but he also asked them to let them know in this meeting if they had any negative information. One of the employees mentioned that a former employee had called the safety of the product into question but that former employee did not directly work on the products and therefore had no knowledge. The lawyer said that the employee had no duty to volunteer this information, but would have to answer questions posed truthfully. The lawyer stated, "It will be better for all of us if they do not find out about this former employee. Tell the truth, but don't volunteer any adverse information." Did the lawyer's conduct concerning witness preparations comply with the Model Rules? A Yes, if the lawyer tells a witness to forget, "say you do not remember," any conversations with the former employee. B Yes, because the lawyer had a duty to prepare the client's employees about the nature of a deposition and how they should respond to questions. C No, because the lawyer could not prepare witnesses in advance of a deposition. D No, because the lawyer's comments encouraged the employees to testify falsely in the deposition.
B Attorneys need to prepare their clients and witnesses before a deposition. They cannot foster falsity but a failure to prepare a witness could undermine the representation. Here, the lawyer properly instructed the witnesses as to the law, the plaintiff's theory and how to simply answer questions.
A lawyer represented a defendant in a personal injury action who allegedly ran a red light. The lawyer put out signs and flyers to see if anyone had witnessed the accident. One elderly man came forward and the lawyer agreed to meet with him. The man told the lawyer that he saw the lawyer's client run the red light. The lawyer thanked the man for his time and told him that if he needed him the lawyer would get back in contact. The lawyer did not disclose the identity of the man to the plaintiff or the police authorities. The trial went forward without the testimony of the man. Did the lawyer's conduct with reference to the interview with the man comply with the Model Rules? A Yes, unless the lawyer was accompanied by a trained investigator when he interviewed the man. B Yes, because the lawyer did not instruct the man not to talk with any other parties in the litigation. C No, because the lawyer sought to obstruct another party's access to evidence. D No, because the lawyer did not inform his client about the content of the man's statement.
B Lawyers can interview all sorts of witnesses and determine that these individuals might harm their case. As long as the lawyer does not tell the witness not to come forward, the attorney has not violated a Model Rule. Because this person is not an employee, relative or agent of the client, the lawyer could not ask them to refrain from voluntarily talking to another party in the litigation. But the lawyer literally said nothing to the man.
A lawyer represented a criminal defendant who had allegedly murdered his classmate with a weapon. One day, the lawyer opened a box sent to him from his defendant client and discovered a gun with a note that stated, "please hold this for me until the representation is over." The lawyer knew that the weapon matched the description of the weapon used in the crime. The lawyer called his client and asked him to pick it up because the lawyer stated that he was not permitted to keep it. The lawyer returned the weapon to the client and told him that if the policed discovered it and found the client's fingerprints on it, the client could be in real trouble. "If you get rid of the gun and wipe your fingerprints off it, that would make my job easier," said the lawyer. Did the lawyer's conduct with reference to the weapon violate the Model Rules? A Yes, because the lawyer should not have opened the package from the client without asking the client about its contents. B Yes, because the lawyer assisted his client in concealing and altering evidence. C No, because the lawyer had a duty of zeal in representing the criminal defendant. D No, because the weapon is not a document that could be altered.
B Model Rule 3.4(a) prohibits a lawyer from obstructing another party's access to evidence or unlawfully alter, destroy, or conceal anything of evidentiary value. Once the lawyer is in possession of the weapon the lawyer may not give it back to the client. The lawyer must turn it over to the authorities.
A lawyer represented a computer manufacturer sued by a purchaser for failing to deliver computers under a long-term supply contract. In a response filed by the lawyer in the matter, the lawyer stated that the failure to deliver the computers resulted because of a shortage of memory parts. At the time, memory components were in short supply, but subsequently the president of the computer company informed the lawyer that company had stockpiled computer memory and that this defense was not credible. The lawyer informed the president that he would need to correct his filing and the president ordered the lawyer to keep this information confidential. The president stated that they could correct the false statement later on, when it was no longer material. The lawyer disobeyed the order and informed the court that he had learned that the statement about the memory was not accurate. Was the lawyer's disclosure to the court consistent with the Model Rules? A Yes, because the lawyer made a frivolous argument to the court. B Yes, because the lawyer made a false statement to the court and had a duty to correct it. C No, because the president ordered the lawyer not to disclose the information to the court. D No, because the president informed the lawyer that the company would correct the false statement later on, when it was no longer material.
B Under Model Rule 3.3 (a)(1), a lawyer who makes a statement of material fact to the court and comes to learn of its falsity, must correct it. The materiality of the statement is obvious in this case as it was a primary defense of the computer manufacturer in why they could not deliver the computers to the purchaser.
A lawyer represented a defendant sued by an employee for wrongful termination. After the case was filed, a manager in the defendant company produced a document that had never been discussed with the defense lawyer. The document purported to discipline the employee and justify the subsequent termination. The lawyer did not know that this document was false, but reasonably believed that it had been falsified by the manager after the case was filed. The defendant's representatives contended the document was genuine, even though they admitted they had never shown it to the employee. They asked the lawyer to introduce this document at the trial. This document, if disclosed, would help the defendant and hurt the plaintiff. The defense lawyer refused to introduce the document into evidence based upon his reasonable belief that it was not genuine. Was the lawyer's decision not to enter this document as evidence consistent with the Model Rules? A Yes, because the lawyer has exclusive control over the means of the litigation. B Yes, because the lawyer reasonably believed that the document was not genuine. C No, because the lawyer had a duty to inform the court about his reasonably belief that the document had been fabricated. D No, because the lawyer failed to follow the client's direction to introduce the document.
B Under Model Rule 3.3(a)(3), the lawyer may refuse to offer evidence the lawyer reasonably believes is false. That concept covers this fact pattern - no actual knowledge, but a reasonably belief the document was falsified.
A lawyer represented a client who was charged with the crime of driving while intoxicated. The client chose to have the case tried before a jury and after four hours of deliberation the jury returned a verdict of guilty. The judge informed the jury that the prosecutor and lawyer would like to speak with them about the verdict and invited jurors to stay behind and talk to the attorneys. One of the jurors was extremely uncomfortable with talking to the lawyers. She had held out for most of the time and eventually gave up and voted to convict. She did not want to discuss her reasoning behind changing her vote. At the outset of the meeting, this juror said, "I would prefer not to do this." But the attorneys said, it will only talk five minutes please stay and talk to us. The juror said no and then the lawyers said, "The judge wants you to talk with us." The juror reluctantly stayed and discussed her voting behavior. Did the lawyer and prosecutor violate the Model Rules in talking to the juror who felt reluctant in talking about the deliberations? A Yes, because the lawyer and prosecutor asked the judge whether they could talk to the jurors after the case was over. B Yes, because the lawyer and the prosecutor communicated with a juror after she had made known a desire not to communicate with them. C No, because the judge authorized the lawyer and prosecutor to talk to the jurors about the deliberations. D No, because the lawyer and the prosecutor had a right to question the jurors about the length of the deliberations.
B Under Model Rule 3.5(c), a lawyer may not communicate with a juror once the case is over if that juror indicates a desire not to communicate with the lawyer. The rationale for the rule is to avoid making jurors feel uncomfortable about serving in the future.
A lawyer represented a defendant in employment litigation with a former employee. The lawyer knew that the plaintiff's case depended heavily upon the testimony of a witness who was about to leave the country for a long business trip. The lawyer asked the court for delay stating that more time was needed to prepare the case, but that was not correct. The lawyer's real reason was primarily her knowledge that the witness would not likely be available to testify in person for the plaintiff. The lawyer had discussed the motion for delay with her client but the lawyer did not obtain the client's permission to file the motion for delay. Is the lawyer's request for delay consistent with the Model Rules? A Yes, because the lawyer has a duty of zealous representation of her client. B Yes, because requests for more time based upon a need for additional preparation are routinely granted by tribunals. C No, because the request is based upon the lawyer's knowledge that a plaintiff's witness will not be available if the delay is granted. D No, because the lawyer did not obtain the client's permission to file the motion for delay.
C Comment 1 to Model Rule 3.2 expressly notes that it is not permissible for a lawyer to use delay to frustrate an opponent's access to evidence. On these facts, the real reason for the request for delay is to frustrate the plaintiff's access to the witness' testimony. The lawyer does not need more time for preparation.
A lawyer represented a famous actor arrested for possession of illegal drugs. At a hearing to determine bail, the judge asked the lawyer whether the client had travelled outside the country in the last 5 years. The actor was not present at the hearing. The lawyer had never discussed this question with the actor, but he had no knowledge that his client had taken trips outside the country. Thus, the lawyer said to the judge, "I can from personal knowledge say No, your honor." The lawyer reasonably believed that he needed to answer this question without equivocation in order to help his client's case for a reasonably bail. Was the lawyer's response to the judge consistent with the Model Rules? A Yes, because a lawyer must zealous advocate for his client's position when asked an important question. B Yes, because the lawyer reasonably believed that he needed to answer this question without equivocation in order to help his client's case. C No, because the lawyer said he knows the answer unequivocally and that was not true. D No, because attorneys should never answer such broad questions about a client's prior conduct.
C A lawyer who makes a statement to a tribunal without knowledge is not being accurate. A statement made without knowledge or without inquiry is simply not proper. The lawyer could have said, "not to my knowledge, but I will check with the client." But the lawyer cannot made this unequivocal statement to the judge.
A lawyer represented a plaintiff in a personal injury case. The trial had begun and was scheduled to take three days. During one of the lunch breaks, the lawyer ended up sitting at a table with one of the jurors. The juror asked the lawyer how things were going, and the lawyer said, "you should know better than I do." The juror said, "you are an impressive advocate." After that exchange, the conversation turned to sports, something that the juror was intensely interested in discussing. The conversation ended with the sports discussion and the lawyer did not inform the judge about this communication with a juror. Was the lawyer's conversation with the juror permissible under the Model Rules? A Yes, because the lawyer did not discuss any specifics about the trial with the juror. B Yes, because the lawyer did not initiate the conversation with the juror. C No, because the lawyer's communication with a juror during trial was an impermissible ex parte communication. D No, unless the juror told the lawyer that the juror had a desire not to communicate with the lawyer.
C Advocacy presumes lawyers on both sides presenting cases to judges and jurors in a tribunal. Ex parte contact by one of the attorneys with a judge or juror is simply in violation of the rules of the proceeding. The system could not work, if advocates were free to try to persuade judges and jurors in private. Model Rule 3.5(b) prohibits this contact on these facts.
A lawyer represented all of the major oil companies in various transactions with landowners. Congress initiated an investigation of potential overreaching by oil companies in transactions with unrepresented individuals. The lawyer felt strongly that the federal legislature should not be involved in regulating private transactions. In conversations with one oil company client, the president told the lawyer that the company would gladly pay any legal fees if the lawyer would testify before Congress on this issue. The lawyer accepted the engagement and prepared a statement for submission to Congress. Because she believed that a personal statement would be more powerful, the lawyer decided not to inform Congress that she was appearing in a representative capacity. The lawyer believed that her personal belief that Congress should stay out of this issue made her statement personal rather than that of a representative of a client. Was the lawyer's appearance before the congressional committee consistent with the Model Rules? A Yes, because the lawyer presented her views in a written statement for everyone to scrutinize. B Yes, because the lawyer personally believed in the position she presented to Congress. C No, because the lawyer did not disclose that an oil company client was paying for her appearance before the committee. D No, because attorneys should not appear at all before legislative bodies investigating industry practices on behalf of paying clients.
C Model Rule 3.9 requires a lawyer to disclose that she is appearing in a representative capacity. That was not done here and therefore the lawyer's conduct violated the Model Rules. Thus, "No" is the correct answer.
A lawyer represented a client who lost money with an investment adviser when the adviser put the client's investments into an energy fund that failed. The lawyer and the client suspected that the investment adviser received improper commissions from the energy fund, but they did not have specific evidence of such a practice. Without such evidence, it was likely that the client would not prevail in the litigation. The lawyer filed the complaint with the statement that discovery would seek to learn all influences on the investment adviser's decisions including all payments from whatever source. Even though the lawyer believed that this was a difficult case, the lawyer believed in good faith that discovery would secure the necessary evidence. Did the lawyer violate the Model Rules in representing this client in a civil case? A Yes, because the lawyer did not possess evidence of the investment adviser's commission practices. B Yes, because attorney believed that it was likely that the client would not prevail in the litigation unless discovery produced additional evidence. C No, because the lawyer believed in good faith that he could develop the vital evidence through discovery. D No, because the lawyer made a statement in the complaint that discovery would seek to learn all influence on the investment adviser's decisions.
C Under Model Rule 3.1, Comment 2, this statement accurately reflects what the lawyer must be able to do in order to avoid filing a frivolous case. Having all discovery before the case is filed is not practical. Lawyers can believe in good faith that facts will be developed through formal discovery.
A lawyer represented a woman seeking to obtain a temporary restraining order against her former boyfriend. The boyfriend was not represented by counsel and failed to appear for the court proceeding on the restraining order. The court asked the woman many questions about the boyfriend's conduct and the answers supported her case. The judge asked the lawyer and the woman whether they had any information about the boyfriend's attempt to address his anger issues. The lawyer had information from the boyfriend that the boyfriend had entered counselling for anger management and that he had made much progress. But the lawyer did not disclose this information to the court because it would undermine the client's motion for a restraining order. The lawyer did not ask the client for permission to disclose this information to the court. Was the lawyer's decision not to inform the judge consistent with the Model Rules? A Yes, because the lawyer had a duty to zealously represent his client in the motion for a restraining order. B Yes, because the lawyer made no misrepresentation of fact or law to the court. C No, because the lawyer represented a client in an ex parte proceeding. D No, because the client did not give her lawyer permission to disclose this information to the court.
C Under Model Rule 3.3(d), the lawyer in this case had a duty to inform the court in an ex parte proceeding about the boyfriend's participation and progress in a counselling program even though such information was adverse to the client's motion for a temporary restraining order. When the opposing party is not represented and not present in the proceeding, the court needs all factual information that it can obtain to make a decision. This Model Rule changes the normal position that lawyers do not need to disclose adverse facts in a proceeding.
A lawyer represented a man who owned a small coal oven factory. A plaintiff sued the man under a theory of products liability. The man had used many engineers in the past to help him perfect his coal oven and he reasonably believed that it was safe and effective. The plaintiff's attorney served standards document production request asking for all design information and testing of the oven. In order to save legal fees, the lawyer sent the document production to the man and asked him to gather all potential documents that it could cover. The man was not legally trained, the man did not have an in-house attorney, and Lawyer did not instruct the man on how to proceed other than saying, "use your best judgment." The man produced documents that he believed were covered and sent them to the lawyer. The lawyer forwarded them to the court and plaintiff. The man had omitted a letter from an engineer asking for a redesign in the past year. The lawyer did not know such a letter existed, yet the letter clearly should have been produced in the discovery. Is the lawyer's conduct regarding discovery consistent with the Model Rules? A Yes, because the lawyer transferred the obligation of complying with discovery to his client. B Yes, because it is reasonable for the lawyer to save the client legal fees by sending the document production request to the client. C No, because the lawyer failed to exercise reasonable diligence in complying with a legally proper discovery request. D No, because attorneys can never rely upon clients or nonlawyers to help comply with discovery requests.
C When a lawyer represents a client with little or no experience with complying with discovery requests, the lawyer must make reasonable efforts to ensure that what is produced in response to a document request is complete. The lawyer failed to do that in this situation.
A lawyer represented a company that sold wine directly to consumers. The federal regulatory agency for wine production filed suit against the company, alleging the sale of wine without proper testing of its alcohol content. The company admitted to the lawyer that it had failed to use modern testing equipment in order to cut costs, but that it had purchased the necessary equipment for future production. The company asked the lawyer to file a motion with the court to delay the proceeding on the merits, because most if not all of the wine in litigation would be sold in the next two weeks and therefore out of the control of the company. The lawyer filed a motion with the court asking for a one week delay, falsely claiming the lawyer needs the extra time to prepare the case. Is the lawyer's request for delay consistent with the Model Rules? A Yes, because the lawyer has a duty of zealous representation of the company. B Yes, because requests for more time based upon a need for additional preparation are proper and routinely granted by tribunals. C No, because attorneys may never delay proceedings for any client benefit. D No, because the delay was achieved by the lawyer's false claim and financial benefit to the client did not render such a false representation proper.
D Comment 1 to Model Rule 3.2 expressly notes that it is not permissible for a lawyer to use the financial benefit of the client to excuse otherwise impermissible delay.
A lawyer represented a criminal defendant charged with embezzlement at her workplace. The client asserted her innocence and the lawyer believed that she was targeted by a manager who was disciplined when shortages were discovered in his department. At the outset of the trial, the lawyer in an opening argument stated that the evidence will show that the prosecution does not have direct evidence linking the defendant to the shortages. During the trial, the lawyer cross examined prosecution witnesses by asking them to recall other incidents in the workplace at the time of these alleged thefts. He sought to prove that the witnesses did not have a strong recollection of events at similar times. In the closing argument, the lawyer argued that he had had a chance to get to know the defendant personally and in his personal opinion she was not involved in these crimes. The lawyer also argued that all of the evidence produced in the trial applied equally to his client's manager. Is the lawyer's conduct regarding his trial conduct consistent with the Model Rules? A Yes, because the lawyer conduct arose in the context of a criminal trial. B Yes, because the lawyer had a right to attack the prosecutor's case. C No, because the lawyer's questioning of the prosecution's witnesses sought to demonstrate their lack of memory rather than examine the contents of their testimony. D No, because the lawyer in closing argument stated a personal opinion as to his client's innocence.
D Model Rule 3.4(e) prohibits a lawyer from stating a personal opinion about the innocence of the accused. In this case, the lawyer made such a statement and the lawyer may be disciplined for making this statement to the jury.
A lawyer represented a client who was charged with possession and distribution of cocaine. The client told his lawyer that he was in fact a cocaine dealer and the substance that had been seized was cocaine. Before the criminal trial, the cocaine seized by the authorities disappeared. The lawyer took the client's case to trial, the client pled not guilty, and the lawyer argued that the government did not prove its case beyond a reasonable doubt. The lawyer did not disclose to the court that his client had confessed to committing the crime. Did the lawyer violate the Model Rules in entering a plea of not guilty for his client? A Yes, because the lawyer knows that his client committed the crime and entering a plea of not guilty is a misrepresentation before the court. B Yes, because the lawyer held the government to formal requirements of proof rather than conceding what the lawyer knew was true. C Yes, because the lawyer as an officer of the court had a duty to inform the judge that his client had confessed to committing the crime. D No, because lawyers who represent criminal defendants may require that the government prove every element of the case even when the client admits involvement in the crime.
D In the second sentence of Model Rule 3.1, attorneys for a criminal defendant or any client involved in a proceeding in which incarceration is a penalty, may defend the proceeding to require the government to prove every element of the case.
A lawyer represented a plaintiff in a personal injury case in a small rural community. The lawyer showed up early to the court and the judge approached the lawyer and invited her back to his chambers to join a card game with the judge and the law clerks. The lawyer was surprised by the invitation but felt that she needed to join the game to protect her client's interests. During the card game, the judge asked the lawyer many questions about the case. Shortly before the trial was to begin, the game ended and everyone went out to the courtroom. The defendant's attorney did not know about this contact that the plaintiff's lawyer had with the judge and law clerks. Was the lawyer's conversation with the judge permissible under the Model Rules? A Yes, because the judge invited the lawyer to join the card game in chambers. B Yes, because the lawyer reasonably believed that if she did not join the game her client's interests would be damaged. C No, because the lawyer did not inform the defendant's attorney about the contact with the judge. D No, because the lawyer communicated ex parte with a judge and court clerks about a pending matter before the court.
D Model Rule 3.5(b) prohibits the ex parte communication and the lawyer should have told the others not to talk about the case during the card game, and, if that did not work, the lawyer should have left the card game.
A lawyer (Defense Lawyer) represented a defendant sued by a plaintiff who fell while at the defendant's store. A jury found for the defendant and the plaintiff appealed. After the jury's verdict, the defendant's president informed the Defense Lawyer that he is grateful that the Plaintiff's Lawyer never discovered that on the day of the accident, the store manager had an improper cleaning solution on the floor that made it slippery. The Defense Lawyer remembered that the Plaintiff's Lawyer had questioned the manager about the products used on the floor and the answer was a bleach solution. The president admitted that the manager had lied on the stand to protect the company. The Defense Lawyer decided not to pursue this issue further because the trial was over and the issue was not likely to arise on appeal. Was the Defense Lawyer's decision not to inform the judge consistent with the Model Rules? A Yes, because the trial was over and the testimony of the manager was not likely to arise in the proceedings. B Yes, because the manager's lie came out during cross examination by the Plaintiff's Lawyer. C No, because the Defense Lawyer before the trial did not inquire into the cleaning solutions used on the floor of the company store. D No, because the case is not over, it is still on appeal, and the Defense Lawyer failed to take reasonable remedial measures to urge the client to disclose the false testimony or to consider informing the tribunal.
D When a client's manager lies on the stand in a civil trial, the presentation of that witnesses in the proceeding is a fraud on the tribunal under Model Rule 3.3(b). The lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal. This duty lasts until the conclusion of the proceeding, which in this case includes the appeal of the decision by the plaintiff.
What level of investigation is necessary before taking on a case?
Enough to discover the information that should be known to the lawyer Must be done competently and diligently
When measuring a lawyer's conduct regarding frivolous conduct is it a subjective or objective standard?
Objective What would a reasonable lawyer do or think in that situation
Does the lawyer's duty to the court to be candid trump the lawyer's duty to the client to protect their confidences?
Sometimes, for example: If Lucy Lawyer states to the court that her client, Cindy, has no additional assets other than those listed on a filing with the court, and then Cindy reveals to Lucy Lawyer that she has other assets, Lucy Lawyer must disclose the other assets to the court even though the communication with Cindy Client about the assets otherwise could be privileged and protected by the duty of confidentiality.
In a criminal context where fruits or instrumentalities of a crime come into the possession of the lawyer, what is the duty the lawyer owes to the court and opposing counsel?
The courts recognize a duty to turn them over to the prosecutor, rather than to hold them for the client. The lawyer does not have the right to make the police officer's job more difficult or to keep property away from the possession of the rightful owner. But this does not require the lawyer to disclose privileged or confidential communications.
If you have a reasonable belief that evidence is false what do you do?
The lawyer may refuse to offer the evidence. You have the right to refuse to present, but you don't have to.
