Transcript Professor Pearce Chapter 6-1 PowerPoint (Spring 2014)

Chapter 6
Duties to the Legal System, the
Profession, and Nonclients
• Intro
– “Couldn't help but make me feel ashamed to live
in a land where justice is a game.” – Bob Dylan
I. Duties to the Court and Other
Tribunals
Duties to Legal System Intro -1
• What Rule governs client perjury?
– Rule 3.3
• What Rule governs frivolous claims?
– Rule 3.1
• What is the analogous civil procedure rule?
– Rule 11
• What Rule governs access to evidence?
– Rule 3.4
• What Rule governs trial publicity
– Rule 3.6
Duties to Legal System Intro-2
• What Rule governs ex parte conversations with
the court?
– Rule 3.5
• What Rule governs truthfulness in statements?
– Rule 4.1
• What Rule governs communication with
represented parties?
– Rule 4.2
• What Rule governs communication with
unrepresented parties?
– Rule 4.3
Duties to Legal System Intro-3
• What Rule governs receipt of an inadvertently
sent fax?
– Rule 4.4 (b)
• What is the general rule governing assistance
to a client in illegal or fraudulent conduct?
– Rule 1.2 (d)
Chapter 6-1
• Client hired Attorney Alpha to file a lawsuit against Client's former
employer, Corp, for wrongful discharge. Alpha filed the suit in federal
district court based upon three grounds. It turned out that a unanimous
U.S. Supreme Court decision had recently eliminated the third ground as a
theory available to plaintiffs in wrongful discharge cases. Attorney Beta,
who represents Corp, filed a motion alleging that the complaint was based
upon a theory (the third ground) that is no longer supported by existing
law and cited the new decision. Within ten days after the filing of the
complaint, Alpha withdrew the third ground and continued with the
litigation. Is Alpha subject to litigation sanction?
– Yes, unless Alpha discussed the adverse legal authority with Client before
filing the complaint.
– Yes, because Alpha should have cited the U.S. Supreme Court decision in
the complaint.
– No, because Alpha withdrew the third ground within ten days after filing
the complaint.
– No, unless Alpha knew or should have known of the recent decision when
the complaint was filed.
FRCP Rule 11 (1 of 2)
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a) Signature. Every pleading, written motion, and other paper must be signed by at
least one attorney of record in the attorney's name—or by a party personally if the
party is unrepresented. . . .
(b) Representations to the Court. By presenting to the court a pleading, written
motion, or other paper—whether by signing, filing, submitting, or later advocating
it—an attorney or unrepresented party certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Rule 11 (2 of 2)
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(c) Sanctions.
(1) In General. . . . the court may impose an appropriate sanction on any attorney, law firm,
or party that violated the rule or is responsible for the violation. . . .
(2) Motion for Sanctions. A motion for sanctions must . . . describe the specific conduct that
allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be
filed or be presented to the court if the challenged paper, claim, defense, contention, or
denial is withdrawn or appropriately corrected within 21 days after service or within another
time the court sets. If warranted, the court may award to the prevailing party the reasonable
expenses, including attorney's fees, incurred for the motion.
(3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to
show cause why conduct specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices
to deter repetition of the conduct or comparable conduct by others similarly situated. The
sanction may include nonmonetary directives; an order to pay a penalty into court; or, if
imposed on motion and warranted for effective deterrence, an order directing payment to
the movant of part or all of the reasonable attorney's fees and other expenses directly
resulting from the violation.
(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary
dismissal or settlement of the claims made by or against the party that is, or whose attorneys
are, to be sanctioned. . . .
Can Beta recover the costs of her
motion?
6-1 Revisited -- Discipline
• Client hired Attorney Alpha to file a lawsuit against Client's former
employer, Corp, for wrongful discharge. Alpha filed the suit in federal
district court based upon three grounds. It turned out that a unanimous
U.S. Supreme Court decision had recently eliminated the third ground as a
theory available to plaintiffs in wrongful discharge cases. Attorney Beta,
who represents Corp, filed a motion alleging that the complaint was based
upon a theory (the third ground) that is no longer supported by existing
law and cited the new decision. Within ten days after the filing of the
complaint, Alpha withdrew the third ground and continued with the
litigation. Is Alpha subject to discipline?
• 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.
In oral argument before the USDC for the SDNY, L states as law an argument that the Supreme
Court has recently rejected. L also fails to mention a Second Circuit case directly adverse on
another issue. Opposing counsel responds by pointing out both the Supreme Court and Second
Circuit decisions. L had been unaware of the Supreme Court case but had known of the Second
Circuit decision. Discipline?
• 3.3 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
Chapter 6-2
• An attorney is employed in the legal department of a public utility and
represents that company in litigation. The company has been sued by a
consumer group that has accused the company of various acts in violation
of its charter. Through its general counsel, the company has instructed the
attorney not to negotiate a settlement but to go to trial under any
circumstances because a precedent needs to be established. The attorney
believes the defense can be supported by a good faith argument, but also
believes the case should be settled if possible. Must the attorney
withdraw as counsel in this case?
– Yes, because the company is controlling the attorney's judgment in refusing to
settle the case.
– Yes, because a lawyer should endeavor to avoid litigation.
– No, because the company's defense can be supported by a good faith
argument.
– No, because as an employee, the attorney is bound by the instructions of the
general counsel.
• Does Rule 1.16 (a) require withdrawal? ((a)“the
representation will result in violation of the rules
of professional conduct or other law”)
• Who decides whether to settle under Rule 1.2(a)?
• What is the lawyer’s duty under Rule 3.1?
• not to “bring or defend a proceeding, or assert or
controvert an issue . .. 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.”
6-3
• An attorney represented a client in an action against the client's former
partner to recover damage for breach of contract. During the
representation, the client presented the attorney with incontrovertible
proof that the former partner had committed perjury in a prior action
which was resolved in the partner's favor. Neither the attorney nor the
client was involved in any was in the prior action. The attorney believes
that it would be detrimental to the client's best interests to reveal the
perjury because of the implication that might be drawn from the former
close personal and business relationship between the client and the
former partner. Would it be proper for the attorney to fail to disclose the
perjury to the tribunal?
– No, because the information is unprivileged.
– No, because the attorney has knowledge that the former partner perpetrated
a fraud on the tribunal.
– Yes, because neither the client nor the attorney was involved in the prior
action.
– Yes, because the attorney believes that the disclosure would be detrimental to
the client's best interests.
Rule 3.3
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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.
(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.
Rule 1.6
6-4
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An attorney represented a client who was injured when the television antenna he was
attempting to erect in his yard came in contact with a power line. As part of its defense,
the manufacturer of the antenna claimed that the antenna came with a warning label
advising against erecting the antenna near power lines. The client told the attorney that
he had not seen a warning label. The client's wife told the attorney that she had kept
the antenna and the box it came in and that she saw no warning label anywhere. When
called by the attorney as witnesses, both the client and his wife testified that they had
never seen a warning label. After their testimony, but while the trial was still in
progress, the attorney learned from the wife's sister that there indeed had been a
warning label on the box, but that the wife had removed and destroyed it. When the
attorney confronted the wife with her sister's statement, the wife admitted destroying
the label but insisted that her husband knew nothing about it. The attorney continued
the trial, but made no reference to the absence of a warning label in his summation to
the jury. Instead, the attorney argued that the warning label, even if seen, was
insufficient to advise his client of the serious consequences that would ensure if the
warning was not heeded. The jury found in favor of the manufacturer. Is the attorney
subject to discipline?
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Yes, because the attorney called the wife as a witness and she gave perjured testimony.
Yes, because the attorney failed to take reasonable remedial action after he realized that the wife
had given perjured testimony.
No, because the jury apparently disbelieved the wife's testimony.
No, because the attorney did not rely on the wife's testimony once he discovered the perjury.
Rule 3.3
• (a) A lawyer shall not knowingly:
• (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.
Comment 10-11
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In such situations or if the lawyer knows of the falsity of testimony elicited from
the client during a deposition, the lawyer must take reasonable remedial
measures. In such situations, the advocate's proper course is to remonstrate with
the client confidentially, advise the client of the lawyer’s duty of candor to the
tribunal and seek the client’s cooperation with respect to the withdrawal or
correction of the false statements or evidence. If that fails, the advocate must take
further remedial action. If withdrawal from the representation is not permitted or
will not undo the effect of the false evidence, the advocate must make such
disclosure to the tribunal as is reasonably necessary to remedy the situation, even
if doing so requires the lawyer to reveal information that otherwise would be
protected by Rule 1.6. It is for the tribunal then to determine what should be done
— making a statement about the matter to the trier of fact, ordering a mistrial or
perhaps nothing.
[11] The disclosure of a client’s false testimony can result in grave consequences to
the client, including not only a sense of betrayal but also loss of the case and
perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate
in deceiving the court, thereby subverting the truth-finding process which the
adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless it
is clearly understood that the lawyer will act upon the duty to disclose the
existence of false evidence, the client can simply reject the lawyer's advice to
reveal the false evidence and insist that the lawyer keep silent. Thus the client
Do the Rules permit the narrative
approach?
• [7] The duties stated in paragraphs (a) and (b)
apply to all lawyers, including defense counsel in
criminal cases. In some jurisdictions, however,
courts have required counsel to present the
accused as a witness or to give a narrative
statement if the accused so desires, even if
counsel knows that the testimony or statement
will be false. The obligation of the advocate under
the Rules of Professional Conduct is subordinate
to such requirements. See also Comment [9].
Chapter 6-5
• Attorney Alpha represents Def in a murder prosecution. Def admits to
Alpha that he killed the victim but claims that he acted in self-defense.
Based on other conversations with Def, Alpha reasonably believes that
Alpha committed the murder but is lying about acting in self-defense. Def
wants to testify at trial to explain his claim of self-defense. Under the
Rules, Alpha
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must permit Def to testify.
must refuse to allow Def to testify.
has discretion to permit Def to testify.
has discretion to permit Def to testify but only if he limits Def's testimony to a
narrative statement.
Rule 3.3
• (a) A lawyer shall not knowingly:
• (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.
• Comment [7] The duties stated in paragraphs (a) and (b) apply to all
lawyers, including defense counsel in criminal cases. In some
jurisdictions, however, courts have required counsel to present the
accused as a witness or to give a narrative statement if the accused
so desires, even if counsel knows that the testimony or statement
will be false. The obligation of the advocate under the Rules of
Professional Conduct is subordinate to such requirements. See also
Comment [9].
Chapter 6-6
• Assume the facts of Question 5 above. Alpha tells Def that if Def testifies
that he acted in self-defense Alpha will inform the judge the Def has
committed perjury. Def decides not to testify because of Alpha's threat.
Does Def have a claim of ineffective assistance of counsel?
– Yes
– No
Nix v. Whitesides
• No unreasonable conduct
• No prejudice
• “no defendant has a right to rely upon
• counsel to assist in the development of false
testimony”
Client Perjury exposes a lawyer to
• Criminal Prosecution
• http://www.youtube.com/watch?v=MFgzZoK2
pp0
Chapter 6-7
• Deft was on trial for the murder of Victim, who was killed during a
barroom brawl. In the course of closing arguments to the jury, Prosecutor
said, "Deft's whole defense is based on the testimony of Wit, who said
that Victim attacked Deft with a knife before Deft struck him. No other
witness testified to such an attack by Victim. I don't believe Wit was telling
the truth, and I don't think you believe him either." Was Prosecutor's
statement proper?
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Yes, if Prosecutor accurately stated the testimony in the case.
Yes, if Prosecutor, in fact, believed Wit was lying.
No, because Prosecutor alluded to the beliefs of the jurors
No, because Prosecutor asserted his personal opinion about Wit's credibility.
Rule 3.4
• A lawyer shall not:
• (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;
Chapter 6-8
• An attorney represented the plaintiff in an automobile accident case. Two
weeks before the date set for trial, the attorney discovered that there was
an eyewitness to the accident. The attorney interviewed the witness. Her
version of the accident was contrary to that of the plaintiff and, if believed
by the trier of fact, would establish that the plaintiff was at fault. The
witness told the attorney that she had not been interviewed by defense
counsel. The witness also told the attorney that she was uncomfortable
with testifying and that she had been thinking about taking a vacation to
Europe the following week. The attorney told the witness that, since no
one had subpoenaed her yet, she had no obligation to appear. He told her
that trials were very difficult for witnesses and suggested that she take the
vacation so that she would be unavailable to testify. Is the attorney subject
to discipline?
– Yes, because the attorney asked the witness to leave the jurisdiction.
– Yes, because the attorney did not subpoena the witness knowing she was an
eyewitness.
– No, because the witness had not been subpoenaed by the defense.
– No, because the attorney did not offer the witness any inducement not to
appear at the trial.
Rule 3.4
• A lawyer shall not:
• (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.
Chapter 6-9
• Attorney represents Client, a plaintiff in a personal injury action. Wit was
an eyewitness to the accident. Wit lives about 500 miles distant from the
city where the case will be tried. Attorney interviewed Wit and
determined that Wit's testimony would be favorable for Client. Wit asked
Attorney to pay Wit, in addition to the statutory witness fees while
attending the trial, the following: I. Reimbursement for actual travel
expenses while attending the trial. II. Reimbursement for lost wages while
present at the trial. III. An amount equal to 5% of any recovery in the
matter. If Attorney agrees to pay Wit the above, for which, if any, is
Attorney subject to discipline?
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III only
II and III, but not I
I, II, and III
Neither I, II, nor III
Rule 3.4
• (b) falsify evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness
that is prohibited by law
• Comment 3 With regard to paragraph (b), it is not
improper to pay a witness's expenses or to
compensate an expert witness on terms
permitted by law. The common law rule in most
jurisdictions is that it is improper to pay an
occurrence witness any fee for testifying and that
it is improper to pay an expert witness a
contingent fee.