MPRE Set 6 (Litigation and Other Forms of Advocacy)

What are the three elements of lawyers and frivolousness?

Under 3.1, a lawyer cannot:

• bring a frivolous claim

• assert a frivolous defense (but in crim, defense lawyer may make the other side prove every element even when you think they are guilty, just can’t make frivolous arguments while doing it)

• take a frivolous position

What is the definition of frivolous

1) no good faith argument under current law; AND

2) no good faith argument for changing current law (very little is frivolous, low bar for claims/defenses)

What IS NOT frivolous?

• filing a claim/defense despite not having fully substantiated all the facts

• thinking your client will lose, so long as there’s a good faith argument

• can make the prosecution prove every element of their case in criminal cases

Where does 3.1 apply?

• answers

• negotiations in mediations

• broadly in proceedings

• need to do adequate pre-complaint investigation

Rule for expediting litigation

3.2: must make reasonable efforts to expedite litigation, consistent with the client’s legitimate interests. (Doesn’t require lawyer to take actions that would harm the client’s interests.)

What IS and ISN’T legitimate/reasonable/good faith under 3.2?

+Legitimate/reasonable/good faith:

-        Occasionally seeking postponement for lawyer’s personal reasons

 +NOT legitimate/reasonable:

-        Routinely not expediting litigation for lawyer’s personal convenience

-        Frustrating the other side’s attempt to obtain rightful redress

-        Delaying for financial/other benefit

-        Not reasonable for a lawyer to delay simply for the strategic advantage of their clients (e.g., delaying hoping a witness/other parties dies)

-        Even getting judicial approval for delay does not relieve you from ethical duty

What is a lawyer’s duty of candor to the court?

Under 3.3(a), a lawyer cannot knowingly:

• make a false statement of fact/law to a tribunal

• fail to correct a false statement of material fact/law the lawyer already made to tribunal that originated with them or the client

• fail to disclose controlling legal authority (binding) that is directly adverse to the client’s position AND not disclosed by the other side

• offer evidence the lawyer knows is false

• if a lawyer, client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know that it’s false, must take reasonable remedial measures

Duty of candor for criminal defendants

If lawyer knows client will give false testimony:

• 1) try to convince the client not to testify

• 2) if client refuses, consider withdrawing if it will solve the problem (it probably won’t)

• 3) if all else fails: tell the judge. some states allow defendants to testify in narrative form (can’t reference in closing).

If lawyer reasonably believes client will give false testimony: must put them on the stand.

Steps for remedial measures under 3.3(a)

1) seek client’s permission to correct evidence

2) if that fails, lawyer should withdraw if it will correct the effect of the false evidence

3) if withdrawal isn’t permitted or won’t undo the evidence’s effect, lawyer must make any reasonably necessary disclosure to the tribunal, even if it involves confidential client info

Barbri says withdrawal isn’t usually enough; typically must: strike false evidence, take steps to cancel effects —> tell judge (not more info than you have to)

When does duty of candor to the court end?

When the case is over (including appeals)

Is lawyer required to have personal knowledge of the facts in pleadings/court documents?

No. But, they can’t knowingly make false statements based on their personal knowledge. In affidavits and in open court, lawyer must know or believe based on reasonably diligent inquiry that their own assertions of fact are true.

Additional rules regarding candor? 3.3(b)-(d)

(a)    If a lawyer representing a client in an adjudicative proceeding knows that someone intends to engage, is engaging, or has engaged in criminal/fraudulent conduct related to it, they must take reasonable remedial measures, including disclosure to tribunal if necessary

o    E.g., spoliation, bribery, intimidation, hiding or destroying evidence, bribing a witness, intimidating a juror, buying a judge, failing to obey order to disclose info

 

(b)    Duties of candor to the tribunal in (a) and (b)

§  Continue only until the end of the proceeding (appeal and all); and

·       Don’t have to tell the court if proceeding is totally over

§  Trump the duty of confidentiality under 1.6!!

 

(c)    Lawyer generally need not disclose adverse material facts, but in an ex parte proceeding, must disclose all, even adverse, material facts

Rules for paying witnesses

• Cannot pay a lay witness any fee for testifying, but can pay reasonable travel expenses.

• Cannot pay an expert witness a contingent fee (i.e., on the outcome of the case), okay to pay fees permitted by law.

What is prohibited witness preparation?

• cannot counsel them to lie

• cannot advise or cause a witness to hide or flee the jurisdiction for hte purpose of making the person unavailable as a witness.

Who can’t a lawyer talk to ex parte at trial?

• judge

  • written communications to a judge are OK if copies are sent to the other side. But in general cannot have a convo w/o the other side knowing

• juror

• prospective juror

• any other officials

Can lawyers investigate jurors?

Yes, discreetly for limited reasons, such as to determine whether there is any basis for a challenge. Reviewing a juror’s or prospective juror’s public internet presence is fine, but sending an access request to social media account is prohibited.

Can lawyers act with intent to disrupt tribunals?

No, under 3.5 they are not allowed

Can a lawyer talk with a juror after the case is over?

Yes, unless it’s prohibited by law or court order, juror has told lawyer they don’t want to talk, or communication involves misrepresentation, coercion, duress, or harassment.

Can a lawyer seek to illegally influence a judge, juror, prospective juror or other official?

No. There is an intent requirement however. Cannot give gifts, or intimidation.

What are lawyers NOT permitted to discuss publicly when a trial is ongoing? (if they participate in the litigation or investigation, or any lawyers associated w/ the firm or gov’t agency)

cannot make statements that:

1) lawyer knows/reasonably should know will be publicly disseminated; AND

2) are substantially likely to materially prejudice the adjudicative proceeding (fact dependent)

3) may not apply to a legislative hearing or transactional work

also cannot make comments that are substantially likely to heighten public condemnation of the accused.

Examples:

• character/credibility

• results of examinations (e.g., lie detector tests)

• whether D will plead guilty

• Whether D confessed

• Opinion that D is guilty or innocent

• The fact that D was charged w/ a crime (unless couched with a statement that it was just an accusation)

• inadmissible information

What can lawyers talk about publicly during a case, civil or criminal?

• public info

• dry facts (claims, offense, or defense involved, and names of people involved (except when illegal)

• that an investigation of a matter is in progress

• the scheduling or result of any step in litigation (judges ruling on a motion)

• requests for assistance in obtaining evidence/info necessary

• warning of danger concerning someone’s behavior when there is a likelihood of substantial harm to someone or the public interest

• statements required to protect a client from “substantial undue prejudice” of recent publicity not initiated by lawyer/lawyer’s client. Statements are limited to what is necessary for protection.

What can lawyers publicly talk about in a criminal case specifically?

• routine booking info, such as: ID, residence, occupation and family status of the accused, the fact, time and place of arrest, and the ID of investigating/arresting officers or agencies and the length of the investigation

• information necessary to apprehend the accused

Can a lawyer be a witness if they are also trial counsel?

Under 3.7, a lawyer can’t be a trial counsel if also likely to be a necessary witness, unless:

• testimony relates to an uncontested issue or formality

• testimony relates to the nature/value of legal services in this case; or

• client would suffer substantial hardship from lawyer’s disqualification

Lawyer can be trial counsel if different lawyer in firm is likely to be a witness, unless precluded by 1.9 or 1.7.

3.4(a): fairness to opposing party and unlawful obstruction

(a)    Unlawfully obstruct other side’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer cannot counsel or assist another person to do any such act either. (Strict liability);

o    Including fruits/instrumentalities of the crime.

o    Cannot alter or materially destroy the characteristics, including getting your fingerprints on it.

 

[2] Applicable law may permit a lawyer to take temporary possession of evidence of client crimes to conduct a limited examination that will not alter/destroy the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.

3.4(b): fairness to opposing party and falsify witness/testimony

(a)    Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

 

o    In most jurisdictions, you can’t

§  Pay a lay witness any fee for testifying,

§  Pay an expert witness a contingent fee. (i.e., on the outcome of the case)

 

o    Okay to pay any witness’s reasonable travel expenses (and loss of time according to Barbri) or an expert witness a fee on terms permitted by law.

§  He said it will depend on state law if that is okay

 

o    Preparing a witness is part of a lawyer’s duty of thoroughness and preparation (that is, diligence), but some forms of witness preparation (for example, counseling them to lie) violate a lawyer’s ethical obligations.

 

o    A lawyer must not advise or cause a witness to hide or flee the jurisdiction for the purpose of making the person unavailable as a witness.

3.4©: fairness to opposing party and disobedience

Knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;

3.4(d): fairness to opposing party and discovery

In pretrial procedure, making a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

3.4(e): fairness to opposing party and trial behavior

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

o    Example: “It takes X amount of time to drive from my client’s home to the murder scene” (not allowed.)

o    Cannot really assert that you know a client is innocent at trial.

3.4(f): fairness to opposing party and instructing parties not to speak to opposing counsel

(a)    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 (definition of relative in JX)

(2)    The lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.