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Pro Res Litigation and Other Forms of Advocacy
Terms in this set (29)
Client was an indigent defendant and received court-appointed counsel for his trial. The trial ended in a conviction. Attorney served as his appointed counsel in the case. Client wanted to appeal his conviction, but Attorney reasonably believes that there is no merit to an appeal. Client insisted that Attorney file an appeal before he missed the deadline, and agreed that Attorney could withdraw from the case without Client's objection if he would simply file the appeal and provide Client with the opportunity to pursue the appeal pro se or with another lawyer. Attorney presented a "no-merit" letter to the appellate court explaining that his client was appealing his conviction but that Attorney could see no merit in the appeal. Was Attorney's conduct proper, according to the United States Supreme Court?
No, because a lawyer must prepare a brief referring to anything in the record that might arguably support the appeal, and leave it to the appellate court to decide whether the appeal is truly frivolous.
Client hired Attorney to represent her federal court litigation, defending against antitrust enforcement actions by the Federal Trade Commission and the Department of Justice. Attorney adopts a "quagmire" strategy, burying the government lawyers in several dozen motions to limit or compel discovery, to compel admissions or stipulations, to limit the admissibility of certain evidence or witness testimony, and so on. On a few occasions, Attorney even re-filed a motion after the court ruled on the motion in the government's favor, merely to make the government lawyer spend the time filing objections or replies based on the court's previous ruling on the same issue. The government lawyers filed a complaint against Attorney with the state bar authorities, but the state disciplinary authority decided not to pursue the matter, in part because it was in federal court and involved exclusively federal issues. Could Attorney also face sanctions or penalties under federal law, if the state bar rejected the complaint?
Yes, a federal statute authorizes federal courts to require a lawyer to pay all the excess costs, expenses, and legal fees incurred because of the lawyer "unreasonably and vexatiously" multiplying the proceedings.
A billionaire business owner decided to run for high-level public office. The billionaire candidate's platform includes a strong commitment to use military force, if necessary, to protect international human rights in foreign nations, especially rights for women, children, and grown men. A college student who operated a radical political blog wrote a blog post saying that the billionaire is "the real face of international terrorism" because the student strongly disagreed with the candidate's foreign policy commitments involving military force. The blog post also called the candidate "another Hitler," who would probably bring "another Holocaust in the nation of Africa." The insults deeply hurt the billionaire candidate's feelings, so he filed a defamation suit against the student blogger, who had not even bothered to spell the billionaire's name correctly. He also vowed that if he were to win the election, he would seek to revoke the citizenship of the blogger, who was born in the United States, and have him deported as an illegal alien to "some hostile nation, such as France." The student immediately filed a motion to dismiss under the state's anti-SLAPP statute, requested a stay of discovery, and asked that the billionaire should have to pay the student's legal costs and fees. Could the billionaire suffer all these adverse results for his defamation suit?
Yes, because anti-SLAPP ("strategic litigation against public participation") statutes are very common and often impose such penalties on public figures who file defamation suits.
Client hired Attorney to represent Client in a litigation matter, but after he filed the notice of representation and the initial pleadings in the case, the opposing party hired Big Firm to represent it. Attorney has already completed three rounds of job interviews with Big Firm and is now simply waiting for their answer, which he hopes will be an offer of employment. Rather that notify the client that an unforeseen conflict of interest has possibly emerged, Attorney simply slows down his work on the case, because if the job offer comes through, he will have to transfer Client's case to another lawyer anyway, and if he does not receive an offer, the potential conflict disappears and he can proceed with the litigation. Attorney thus waits until the last possible day to respond to any filings or discovery requests, and frequently calls the opposing party asking for more time, which they always grant. Is it proper for Attorney to stall the progress of the case for a while, to allow time for the conflict either to disappear or for him to need to transfer the case to some other lawyer?
No, because a lawyer has a duty to make reasonable efforts to expedite litigation consistent with the interests of the client.
Client hired Attorney to represent him in litigation because of Attorney's reputation for being the meanest, most aggressive litigator in town. Client is the defendant and Attorney bills by the hour. The judge in the case orders the parties to participate in a "caucused mediation" to encourage a settlement before trial. Attorney begins the mediation by declaring that his client is unwilling to compromise at all, even though Client had told him that they might settle the case for a reasonable amount. Attorney overstates the strength of Clients case and grossly understates the strength of the opposing party's position in what everyone knows is a close case. Attorney is merely posturing or bluffing in an effort to obtain a more favorable settlement for his client. Due to Attorney's hardline approach, the mediation drags on for several sessions spanning several days, and ultimately proves to be futile, so the parties schedule a trial. Is Attorney potentially subject to discipline for this approach in court-ordered mediation?
Yes, because even if the statements were not material facts, lawyers must make reasonable efforts to expedite litigation consistent with the interests of the client.
Client hired Attorney to represent him in litigation, and explained to Attorney his version of the incident that gave rise to the dispute with the other party. Attorney took notes on the account that Client provided, and drafted pleadings that alleged the facts as alleged by Client. Attorney did no investigation before filing the pleadings to provide independent verification of Client's version of the story, because he thought that discovery would bring to light the necessary facts to reveal the truth of the matter. Similarly, Attorney submitted as evidence the various documents client provided to him, without doing his own assessment of the authenticity of the evidence so that he could vouch for the evidence himself. It turned out, as the other side submitted its evidence, that Client's account of what happened was full of fabrications, and some of the evidence was invalid. Attorney did not know the Client was being untruthful, but he neglected to make any efforts to verify Client's story before presenting it in court. Could Attorney be subject to discipline for undermining the integrity of the adjudicative process?
No, because a lawyer need not have personal knowledge of matters asserted in pleadings, for litigation documents ordinarily present assertions by the client, and not assertions by the lawyer.
Attorney represents Client in a civil litigation matter. As they prepare for trial, at which Client will testify as a witness on his own behalf, Attorney realizes that Client is probably not going to tell the truth, even though Client insists he will be completely truthful. Attorney believes there is some chance that Client is indeed telling the truth, but he is about 70% certain that Client is being untruthful, despite Client's protestations. Does Attorney have an ethical duty to try to prevent Client from presenting testimony that Attorney believes is probably false?
No, because the prohibition against offering false evidence only applies if the lawyer knows that the evidence is false, and a lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact
Client is a defendant in a criminal prosecution, and Attorney is his court appointed defense lawyer. Client wants to testify at his own trial, despite Attorney's recommendations that he not do so. As they are preparing for trial, Attorney asks Client what he plans to say on the stand. Client's story seems suspicious to Attorney - he has serious doubts about its veracity - but Client insists that he is telling the truth, and Attorney is not sure. Does Attorney have an ethical duty to allow Client to give this improbable testimony at trial?
Yes, because in a criminal case, a lawyer cannot refuse to offer the testimony of a client where the lawyer reasonably believes but does not know that the testimony will be false; unless the lawyer knows that the testimony will be false, the lawyer must honor the client's decision to testify.
Attorney is a criminal defense lawyer, and he represents Client, who is facing charges for burglary of a private residence. Client has asserted an alibi - he claims that on the evening of the burglary, he was 100 miles away on a romantic getaway with his girlfriend. Attorney interviews Client's girlfriend, who recounts a similar story about being on a romantic getaway, but a few details do not match Client's account, such as what they ordered for dinner when they stopped at a restaurant, and whether they had to stop for gas along the way. Attorney suspects the girlfriend is lying to protect Client, and that they rehearsed an alibi story without working through the fine details together. Attorney lectures both Client and his girlfriend about the wrongfulness of perjury and the fact that they do not have to testify at all, as well as the hazard of having their stories crumble under rigorous cross-examination. Is it permissible, under the Rules of Professional Conduct, for Attorney to call Client and his girlfriend as witnesses during trial?
Yes, because Attorney does not know with certainty that they are lying, he must allow Client to testify, and it is permissible to call the girlfriend as a witness as well.
Client is on trial for a theft case. Witness was with Client at the time police state that Client committed the crime at a location far from the crime scene. Client chooses to take the case to trial. For Witness's attendance at trial, Attorney pays Witness a lump sum amount. Are Attorney's actions proper?
No, because a witness cannot be paid to attend and testify at a hearing or trial.
Attorney responded to a distressed call from Client asking that he meet him immediately on the street behind Attorney's office. Attorney rushes downstairs to meet Client outside his building. Client is very distraught and has blood splattered on his clothes, hands, and face, and is holding a pistol. Client stammers, "You will not believe what just happened." Attorney takes the pistol and throws it down the closest storm gutter on the street, and they can hear the gun clanging against concrete as it tumbles deep down into the storm sewer. Attorney says, "It is late and you are too upset to talk. Go home and clean yourself up, and do your laundry - you are a mess. We can discuss this tomorrow morning when you are in a better frame of mind." Client goes home to shower and launder his clothes, and Attorney returns to his office and resumes his work on the brief he was writing. Was Attorney's conduct a violation of his ethical duties?
Yes, because Attorney concealed or obstructed the police's access to potential evidence by discarding the gun, and he counseled Client to destroy the evidence on his clothes.
During trial, the plaintiffs complained that Attorney's client had not fully complied with certain production requests during discovery. The judge ordered Attorney to produce the specific records. Attorney believed that his client had no legal obligation to produce the records in question, because they included important trade secrets and were not relevant or material to the current litigation in any way. Attorney openly refused to produce the records and explained his position to the judge. The judge disagreed and ordered Attorney to bring the records to the courtroom the next day. Attorney did not obey the judge's order. Apart from any potential contempt-of-court sanctions, could Attorney be subject to discipline for violating the Rules of Professional Conduct?
No, because a lawyer may disobey an order from a tribunal when the lawyer has made an open refusal based on an assertion that no valid obligation exists.
During the discovery phase of business litigation, Conglomerate Corporation receives a discovery request asking for "all documents, memoranda, emails, or other internal correspondence related to the transaction that is the subject of this dispute." Attorney represents Conglomerate Corporation. Thousands of documents stored in electronic format on Conglomerate's computers and servers would arguably fall under this request for production. Attorney proposes to opposing counsel that they produce the requested documents in electronic form on a set of compact discs, and the opposing counsel readily agrees. Long before the litigation began, Attorney began using software to scrub the metadata from documents - electronically embedded information about the name of the user whose computer created the document, the date and time of creation, redlined changes from each stage of editing, and comments that other readers added to the document before it took its final form. Proposed contracts, letters to business partners, and correspondence with opposing counsel are all free from embedded metadata. Was it proper for Attorney to scrub the metadata from electronic documents that could potentially be subject to a discovery or production request in future litigation?
Yes, because a lawyer may take measures to eliminate metadata from documents that could later fall into the hands of an opposing party.
During the discovery phase of business litigation, Conglomerate Corporation receives a discovery request asking for "all documents, memoranda, emails, or other internal correspondence related to the transaction that is the subject of this dispute." Attorney represents Conglomerate Corporation. Thousands of documents stored in electronic format on Conglomerate's computers and servers would arguably fall under this request for production. Attorney proposes to opposing counsel that they produce the requested documents in electronic form on a set of compact discs, and the opposing counsel readily agrees. After receiving the production request, Attorney began using software to scrub the metadata from documents - electronically embedded information about the name of the user whose computer created the document, the date and time of creation, redlined changes from each stage of editing, and comments that other readers added to the document before it took its final form. Proposed contracts, letters to business partners, and memoranda between managers all have their embedded metadata erased. Was it proper for Attorney to scrub the metadata from electronic documents before delivering them to the other party in response to a discovery request?
No, because the main reason for scrubbing metadata is to conceal information that might be useful to an opposing party or tribunal in the
Police arrested several protestors who were advocating a cause that Attorney strongly supported. One of the protestors had a violent altercation with police, and she was facing criminal charges. Attorney practices corporate transactional law and not litigation. The news media reported that jury selection would begin the following Monday in the protestor's prosecution. Attorney waited outside the courthouse where prospective jurors were reporting for jury service, and a long line formed at the metal detectors for entering the courthouse. Attorney waited in line and started conversations with the prospective jurors in front of him and behind him in the line, during which he explained that he was a lawyer and that the case against the protestor was ridiculous from a legal standpoint. He told them that he hoped the jury would follow the laws of the state and acquit the protestor. Once Attorney made it through the security line, he walked out of the courthouse and got back in the security line again, and had similar conversations with more prospective jurors. During voir dire, the prosecutor asked the prospective jurors if anyone had spoken to them directly about the case, and three people mentioned their conversations with a lawyer in the security line waiting to get into the building. None of the individuals with whom Attorney spoke ended up on the jury in the case. The prosecutor eventually determined Attorney's identity and filed a grievance with the state disciplinary authority. Could Attorney be subject to discipline?
Yes, because a lawyer shall not seek to influence a judge, juror, or even a prospective juror.
A judge lost his temper with Attorney and spoke very abusively to him in open court, in front of a jury, using profanity and calling Attorney "an embarrassment to the profession and a menace to his own clients." Attorney shot back that the judge was completely out of line, that the judge should have retired years ago; Attorney also made a mildly obscene gesture at the judge. Eventually, both calmed down and apologized to each other profusely. Opposing counsel reported Attorney to the state bar disciplinary authority, but did not report the judge, before whom opposing counsel appears regularly. Could Attorney be subject to discipline?
Yes, because a lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate.
Attorney received a call from his cousin, who lives in another city, one evening after work. The cousin was serving on a jury in a misdemeanor criminal case, and deliberations were set to begin the following morning. The cousin explained that part of the jury instructions focused on whether the defendant committed the act "knowingly." She is confused about whether that means that the defendant knew that he was committing the act, or that the defendant knew he was doing something illegal at the time. She called Attorney hoping for some clarification. Attorney practiced real estate law and had never handled a criminal case, but he vaguely remembered something about this from his first-year law school course in criminal law. Given that there was no time for him to research the subject, or to create an agreement for representation, and the fact that he had very limited information, Attorney offered the best explanation he could. Was it proper for Attorney to answer her question under these circumstances?
No, because he communicated with a juror about a pending case.
A lawyer is representing the defendant in a highly publicized civil trial between two celebrities. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that his client has agreed to take a polygraph test proving that he is telling the truth about the disputed matter, but that the opposing party has refused to take a polygraph test, which suggests that the other person is hiding something. The lawyer has his client's permission to talk to the media. Opposing counsel is standing nearby waiting for his turn to talk, and he expresses no objection to the first lawyer giving interviews like this, or to the lawyer's comments. Were the lawyer's statements proper?
No, because there is a presumption of prejudicial effect on the proceedings when a lawyer comments publicly about the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test.
A lawyer is representing the defendant in a highly publicized criminal trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that his client is still considering whether to enter a guilty plea to lesser charges, as the prosecutor's offer is still open, and that they are waiting to see how jury selection goes before deciding whether to plead guilty or proceed to trial. The lawyer also explains that his client has never actually confessed to the crime charged, despite several lengthy interviews with the police and the client's admitting that he was near the scene of the crime when it occurred. The lawyer has his client's permission to talk to the media, and the prosecution has expressed no objection to him giving interviews like this on the courthouse steps in previous cases. Were the lawyer's statements proper?
No, because there is a presumption of prejudicial effect on the proceedings when a lawyer comments publicly about the possibility of a guilty plea, or a party's refusal to confess to a crime.
A lawyer is representing the defendant in a highly publicized trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that his client has a perfectly clean criminal record, while the state's star witness is already serving time on a felony drug conviction. In his personal opinion, he says, the client is innocent and should receive an acquittal, but he does not explain the defense theory of the case. The lawyer declares that he has his client's permission to talk to the media, which is true, and that the prosecution expressed no objection to him giving interviews like this on the courthouse steps in previous cases. Were the lawyer's statements proper?
No, because the official Comment to the Model Rules says that expressing an opinion about a party's guilt or innocence, or about the criminal record of a party or witness, is more likely than not to have a material prejudicial effect on a proceeding.
Attorney defended Client in a criminal proceeding that attracted low-level media attention on the local evening news and a few local-interest blogs. A semi-retired reporter for the local evening news called Attorney at his office and asked for a quote about Client's case. Attorney stated that Client had no prior criminal record and that they planned to put on a rigorous defense, and he hoped the prosecutor would drop all the charges before trial. Was it improper for Attorney to make these statements?
Yes, because a lawyer should not make extrajudicial comments about the criminal record of a party during a criminal matter.
Attorney defended Client in a criminal proceeding that attracted low-level media attention on the local evening news and a few local-interest blogs. One of these bloggers called Attorney at his office and asked for a quote about Client's case. Attorney stated that a member of the local clergy, as well as the Principal of the local high school, would testify as to Client's good character and volunteer activities. Was it proper for Attorney to discuss such things with a blogger?
No, because in a criminal matter, it is presumptively prejudicial for a lawyer to make extrajudicial statements about the expected testimony of a party or witness.
At a press conference about the prosecution of an accused serial killer, the prosecutor stated that the police arrested the defendant at the scene of one of the crimes soon after the crime occurred, at 11 pm on Saturday. Was it proper for the prosecutor to disclose such information about the case to reporters?
Yes, because a lawyer in a criminal case may state the fact, time, and place of arrest.
At a press conference about the prosecution of a notoriously vice-prone celebrity, the prosecutor stated that the District Attorney's office had filed charges against the celebrity for shoplifting and drug possession. The prosecutor then said he had no further comments and took no further questions. Was it proper for the prosecutor to disclose such information about the case to reporters?
No, because in a criminal case, it is presumptively prejudicial for a prosecutor to state publicly that a defendant has been charged with a crime, unless he includes a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
Attorney normally represents Client in commercial litigation matters, but in one particular case, Attorney had to testify as a witness during the trial, so he arranged for another firm to represent Client during the trial at which Attorney testified. Client prevailed at trial, and the opposing party filed an appeal. Attorney's testimony from the trial is not an issue in the appeal; instead, the appeal focuses on the apportionment of fault and certain guarantees in a commercial contract. The firm that handled the trial did not do appellate work and ended their termination of Client after the trial ended in a favorable verdict. May Attorney represent Client in the appeal, even though Attorney testified at the trial?
Yes, because the advocate-as-witness rule generally applies only to representation during the trial, unless the lawyer's testimony is an issue on appeal.
Attorney was a criminal defense lawyer and she represented Client, who was a defendant in a criminal prosecution. The prosecution called Attorney to the witness stand to authenticate a piece of evidence, which Attorney was willing to do because the authenticity of the evidence was not really in dispute; Attorney planned to use alibi evidence to defeat the charges against Client, which would make this piece of evidence relatively unimportant to the case. May Attorney testify in this manner in a case in which she represents the defendant?
Yes, because the testimony relates to an uncontested issue.
Client is an indigent criminal defendant and Attorney is his court-appointed counsel. The trial is taking place in a rural county where only a handful of lawyers practice law. Before appointing Attorney to represent Client, the court had tried to appoint five other local criminal defense lawyers, one after the other, but each was unable to provide representation due either to a conflict of interest or because their current caseload would have precluded them from providing competent representation. In fact, Attorney was the last lawyer on the court appointments list. Unfortunately, Attorney also needed to serve as a witness during part of the trial, in order to authenticate a piece of evidence, and the authenticity of the evidence was a matter of dispute in the case. In addition, Attorney realized that his testimony would radically contradict the testimony of his own client, though Attorney still believed he could obtain an acquittal by impeaching the prosecution's star witness. May Attorney continue to represent Client and testify as a witness in this matter?
No, because there is likely to be substantial conflict between the testimony of the client and that of the lawyer, so the representation involves a conflict of interest that requires compliance with the conflicts rules.
Attorney is representing himself in his divorce proceeding. Would it be proper, under the advocate-witness rule, for Attorney to testify as a witness on his own behalf in the proceeding in which he represents himself?
Yes, because the advocate-witness prohibition does not apply to pro se litigants who are attorneys.
A famous professional athlete faced charges for allegedly murdering his wife and her male companion one evening outside their Beverly Hills home. The defendant assembled a legal "dream team" of the five most famous criminal defense lawyers from around the country. One of the lawyers was in possession of a handwritten letter from one of the murder victims saying that a drug cartel had been making death threats against the victim for a few weeks. The evidence would have been somewhat exculpatory for the defendant, but the lawyer would have to take the witness stand briefly during the trial to authenticate the document or explain how he received it. The document was a hotly contested piece of evidence in the case, but was not the only evidence pointing toward the defendant's innocence or guilt. The prosecutor wanted the court to disqualify the lawyer from representing the defendant if he testified about the letter. The defendant insisted that this would work a substantial hardship on him, because this particular lawyer was the only criminal defense lawyer in the county with an undefeated record - he had obtained acquittals in hundreds of criminal trials and had never lost a case. Should the court side with the defendant in this case and allow the lawyer to continue as part of his defense team?
No, because disqualification of the lawyer would not work substantial hardship on the client.
THIS SET IS OFTEN IN FOLDERS WITH...
Pro Res Maintaining the Integrity of the Profession
Pro Res Communications About Legal Services
Pro Res Chapter 2
Pro Res Different Roles of the Lawyer
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