Chapter 6

1. Chapter 6 Duties to the Legal System, the Profession, and Nonclients

2. Intro • “Couldn't help but make me feel ashamed to live in a land where justice is a game.” – Bob Dylan

3. I. Duties to the Court and Other Tribunals

4. 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

5. 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

6. 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)

7. 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.

8. FRCP Rule 11 (1 of 2) • 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.

9. Rule 11 (2 of 2) • (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. . . .

10. Can Beta recover the costs of her motion?

11. 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?

12. 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.

13. 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

14. 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.

15. 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.”

16. 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.

17. Rule 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 • (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

18. 6-4 • 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? • 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.

19. 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.

20. Comment 10-11 • 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 could in effect coerce the lawyer into being a party to fraud on the court.

21. 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].

22. 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 • 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.

23. 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].

24. 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

25. 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”

26. Client Perjury exposes a lawyer to • Criminal Prosecution • http://www.youtube.com/watch?v=MFgzZoK2pp0

27. 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? • 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.

28. 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;

29. 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.

30. 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.

31. 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? • III only • II and III, but not I • I, II, and III • Neither I, II, nor III

32. 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.