Diligence
Basic rule—lawyers must be DILIGENT
- If you CANNOT BE DILIGENT, you MUST WITHDRAW
- Cannot delay for the sake of delay.
“Zealous” Advocacy
As an advocate, a lawyer should zealously represent his/her client’s position by presenting evidence and argument so that the client’s cause may be decided according to law.
FRIVOLOUS CLAIMS
- A lawyer may not assert or defend a claim that is frivolous absent a good-faith argument to extend the law.
Reliance on a client’s factual assertion may be permissible under ethical rules.
- FRCP 11 and its state cognates require “reasonable investigation” into the client’s facts.
- Development of facts may make an action frivolous later.
- What should Lawyer do? WITHDRAW.
However, the lawyer must refrain from abusive or unruly conduct.
- Abusive and Unruly Conduct–In the course of zealous representation, a lawyer must not engage in conduct intended to disrupt a tribunal and must refrain from abusive or unruly conduct.
- Disruption, Delay – Cannot delay for the sake of delay. Can ask for a reasonable extension
Candor to the Tribunal
A lawyer who is representing a client before a tribunal has a duty of CANDOR—i.e., a duty to be honest.
- “Tribunal” = administrative agencies / courts.
A lawyer MUST NOT “KNOWINGLY” (actual knowledge):
- 1) make false statements as to LAW or FACT
- 2) fail to disclose known controlling authority which is directly adverse to their client’s position AFTER it was NOT disclosed by opposing counsel (not expected to disclose adverse controlling authority on initial brief)
- 3) offer evidence the lawyer knows to be false
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2) No Duty to Disclose Unfavorable facts/law unless doing so is necessary to avoid assisting in the client’s crime or fraud.
- Exception – ex parte proceeding – a lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision—even if the facts are adverse to the lawyer’s client.
3) Refusing to Offer Evidence/Testimony
- Civil = A lawyer MAY refuse to offer evidence the lawyer “reasonably believes” is false.
- CRIMINAL = Lawyer may NOT refuse to offer clients testimony UNLESS lawyer KNOWS the testimony will be false.
Remedial Measures
If a lawyer, client, or witness called by the lawyer, has offered MATERIAL EVIDENCE and the lawyer comes to KNOW of its FALSITY, the lawyer MUST take REASONABLE REMEDIAL MEASURES
- DUTY ENDS when the litigation is OVER – A lawyer is under no duty to reveal false evidence or perjury that is discovered after the conclusion of the proceedings.
Reasonable Remedial measures –
- (i) Advising the client of the lawyer’s duty of candor and urging the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.
- (ii) Disclosure to the tribunal (or legislative body).
When perjury is about to be committed:
- Lawyer MUST remonstrate with the witness (i.e., attempt to dissuade) to correct the falsity;
- Lawyer MAY take the matter to the court and seek to WITHDRAW
- When withdrawal is denied (and it usually will be), the lawyer can present “trial by narrative” where the witness testifies without lawyer’s participation (i.e., no questions or objections).
Tampering
A lawyer cannot tamper with EVIDENCE or WITNESSES
- Client hands Lawyer a laptop and says, “I used this to steal thousands for my company.”
- Lawyer CANNOT: destroy the laptop, wipe the hard drive, store the laptop in his office indefinitely
- Larry MUST turn it over to the police
- Police cannot say they got it from Lawyer (prejudicial)
Notes
- A knowing or bad-faith failure to change or depart from a routine document retention policy by securing material that is known or should be known to have potential evidentiary value is a breach of a lawyer’s duty of fairness to an opposing party and counsel.
NO payment of witnesses except for the COSTS of coming to the proceedings
- Exception—Expert Witnesses; But—no contingency fees for experts.
“Ex Parte” Communications
Lawyers are PROHOBITED from engaging in OUT-OF-COURT COMMUNICATIONS, before or during a proceeding, REGARDLESS of whether the lawyer initiates the communication or intends to influence
- Judges
- Jurors
- Prospective venire (potential jurors)
Might be permitted to speak to jurors AFTER they are discharged (survey)
- Regulated by local court rules
- Typically requires judicial permission
- Cannot talk to the juror about inadmissible evidence
Communications with Represented Persons
PROHIBITED – Lawyer (or lawyers agent) directly communicating about subject of representation with person lawyer KNOWS is represented by counsel UNLESS:
- the lawyer has the consent of the other lawyer or
- a law or court order authorizes the communication.
Permitted
- Parties communicating directly with eachother (lawyer may advise a client concerning such a communication)
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Entities
- Presume that members of the control group of an entity are represented by the lawyer for the entity.
Constituents (e.g., employee) of the organization who are presumed to be represented:
- supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or
- has authority to obligate the organization with respect to the matter, or
- whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
Admissions
- A lawyer CANNOT talk to a person who could make a statement that would be used as an admission. (vicarious liability, co-conspirators)
- Former employees are no longer represented by the entity’s attorney.
Communications with Unrepresented Persons
A lawyer cannot MISLEAD the unrepresented person.
- Suggesting you are not interested in the case.
- Concealing the fact that you are a lawyer in the case.
Special rule—undercover attorneys
- Use of an undercover agent is permitted, particularly in criminal cases and in civil litigation, where information cannot be obtained by other means.
Inadvertent communication – Larry receives an email concerning his client. After a quick glance, it’s clear that the email was sent in error.
- Larry must NOTIFY the sender
- He can still read it. There’s no prohibition on the recipient reading or using the inadvertent communication.
Media Contact Rule
Lawyers CANNOT make statements to media that have a substantial likelihood of prejudicing the proceeding.
Standard is Prejudice – One key factor in determining prejudice can be the nature of the proceeding involved.
- A criminal jury trial will be most sensitive to extrajudicial speech,
- A civil trial may be less sensitive.
- A non-jury hearing or arbitration proceeding may be even less sensitive.
Specific prohibited circumstance
- bad comments about WITNESSES.
- Information that would be inadmissible at the proceeding.
EXCEPTIONS:
- General facts of the case and procedure (e.g., how litigation will proceed, scheduling, or warning to public)
- “He Started it” – A response that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity that was not initiated by the lawyer or the lawyer’s client. Such a statement must be limited to such information as is necessary to mitigate the recent adverse publicity.
Duty of Fairness to the Opposing Party / Counsel
Lawyers owe a duty of fairness to the opposing party and opposing counsel. Prohibits all of the following:
- Obstructing access to evidence,
- Falsifying evidence,
- Frivolous discovery requests
- Requesting person other than Client refrain from volunteering information
- Alluding to Irrelevant matter, and support the claim, or personal opinion at trial
- Disobeying (knowingly) rules of tribunal
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Obstructing Access to evidence
- A lawyer must not 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 must also not counsel or assist another person to do any such act.
- Evidence may be legitimately destroyed when done pursuant to a document retention policy that is reasonable and evenly applied. However, knowing or bad-faith failure to change or depart from routine document retention policies to secure material that is known or should be known to have potential evidentiary value constitutes a breach of this duty.
Requesting person other than Client refrain from volunteering information – A lawyer may request that a person refrain from volunteering information to another party if
- (1) that person is a relative OR an employee or other agent of the client and
- (2) the lawyer reasonably believes that the person’s interests will not be adversely affected
Violation of rules of the tribunal
- A lawyer must not knowingly disobey an obligation under the rules of a tribunal
- EXCEPT for an open refusal based on an assertion that no valid obligation exists.
Undermining evidentiary rules at trial
- At trial, a lawyer must not allude to matters that are irrelevant or are not supported by evidence that the lawyer reasonably believes will be admissible.
- When addressing the jury, a lawyer is prohibited from alluding to evidence that is ruled inadmissible by the court.
No Personal Opinion at Trial – The lawyer is also prohibited from:
- (i) asserting personal knowledge of facts in issue except when testifying as a witness, or
- (ii) stating 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.
- The lawyer may make an argument about any of the above based on the evidence in the case, however.
