Litigation and Other Forms of Advocacy

When can you bring or defend a proceeding?

If there is a basis in law meaning if there if a good faith argument for an extension, modification, or reversal of existing law

Candor Toward the Tribunal. A lawyer may not knowingly

1. Make a false statement of fact or law

2. Fail to disclose controlling and adverse authority not disclosed by opposing counsel

3. Offer evidence known to be false

What should a lawyer do if the 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?

1. Talk to the client confidentially and seek cooperation to correct or withdrawal the evidence

2. If that fails, withdrawal from the representation

3. If you can’t withdrawal or that will not reverse the effect of the false evidence, disclose to the tribunal to remedy the situation

How long does the duty disclose false information last?

The duty continues until the final judgement has been affirmed on appeal or the time for appeal has expired

What if the lawyer does not actually know if the evidence is false but they suspect it

The prohibition against offering false evidence only applies if the lawyers KNOWS that the evidence is false.

What if the client already offered false evidence?

1. Explain to the client the lawyer’s duty to the tribunal and seek their cooperation

2. Correct false statements/evidence or withdraw if this corrects the issue

3. Reveal situation to the judge

What if client wants to offer false evidence in a civil case?

1. Seek to persuade client against this

2. Refuse to offer evidence

3. If only a portion of of the evidence is false, then call client to testify and do not ask about false part

What to do if client wants to offer false evidence in a criminal case

1. Seek to persuade against this

2. Consider withdrawal — if this likely fixes the problem (likely won’t)

3. reveal the situation to the judge

Fairness to Opposing Party. A lawyer shall not:

• Unlawfully obstruct a party’s access to evidence;

• Alter, destroy, or conceal material having potential evidentiary value; or

• Falsify evidence, counsel or assist a witness to testify falsely, or offer an unlawful inducement to a witness

• knowingly disobey an obligation under the rules of a tribunal

• Make a frivolous discovery request or fail to comply with the discovery request by an opposing party

• Request a person to refrain from voluntarily giving relevant information to another person

Fairness durIng trial. A lawyer must not:

• allude to any matter that is irrelevant or not supported by admissible evidence;

• Asset personal knowledge of facts in issue; or

• State a personal opinion as to the justice of the cause, credibility of a witness, culpability of a civil litigant, or guilt or innocence of the accused

What is a personal opinion that can not be stated during trial?

• the justness of a cause

• The credibility of a witness,

• The culpability of a civil litigant, or

• The guilt or innocence of an accused

When can a lawyer request a person other than a client to refrain from voluntarily giving relevant information to another party

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

Can you threaten criminal charges against an adversary to gain an advantage in a civil case?

Yes, provided that the threats are closely related and there is factual and legal basis for the threat

When is threatening of disciplinary violation notification not permitted?

A lawyer may not threaten to report opposing counsel for a disciplinary violation to gain an advantage. If the lawyer should just report it and not threaten

Which circumstances should a lawyer not communicate with a juror or prospective juror after discharge of the jury

• the communication is prohibited by law or court order

• Juror has made known to the lawyer a desire not communicate; or

• Communication involves misrepresentation, coercion, duress, or harassment

A lawyer who is participating or has participated in the investigation shall not

• make an extrajudicial statement

• Knows or reasonably should know

• Will be disseminated through public communication; and

• Has a substantial likelihood of materially prejudicing a proceedings in the matter

For trial publicity, a lawyer may state:

• the claim, offense or defense involved, and, except when prohibited by law, the identity of the persons involved;

• Information contained in a public record

• That an investigation of a matter is in progress;

• The scheduling or result of any step in litigation;

• A request for assistance in obtaining evidence and information necessary thereto

• A warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

• In a criminal case - the identify, residence, occupation, and family status of the accused, if the accused has not been apprehended, info necessary to aid in apprehension of that person