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PR 300 Series
Terms in this set (22)
What is the meritorious claim requirement?
"3.1 • General: Can't make claim unless there is a non-frivolous basis in law or fact (includes GF arguing for change in law)
o 5-4 Principle: No need to believe you will win
o Effect: Can bring otherwise valid claim, even if it is time barred, bc SoL is waiveable. But once otherside raises the defense, lawyer cannot continue with case
o The Switch: At some point, must shut up advocating for new law
• Criminal Context: Can defnd in proceeding as to require every element of case to be established;"
What's the rule of the speed/efficiency of litigation?
"3.2 Rule: Must make reasonable efforts to expedite litigation "consistent with interests of client"
Consistent with client's interests: Legitimate delay fine, so long as not frivolous (can't lie or be unreasonable) Legal system often permits delays
Concerns for Lawyer under FRCP R. 11: Lawyer sanctions if he delays or needlessly increases cost of litigation. 1927 says he has to pay personally
Current Rule: By presenting something to the court, the lawyer is saying its (1) not presented for an improper purpose (harass, up costs etc) (2) claims are warranted by existing law or nonfrivolous argument (3) factual contentions have evidentiary support (4) denial of factual contentions are warranted
Sanction Safe Harbor: If court imposes sanctions, lawyer gets 21 says to correct (proposed law to take this away that Reich doesn't like);"
What is the extent of the duty of candor before a tribunal?
What you need to do when you are aware of a misstatement during a client proceeding?
3.3 Must correct the statement;
What happens if you know your client wants to lie in a criminal context?
3.3 Prevention of Criminal or Fraudulent Conduct: If lawyer knows that Client is about to do such conduct related to the proceeding, lawyer must take reasonable measure or disclose to tribunal, if necessary;
Do you have to bring controlling content forward even if it hurts you?
3.3 Yesyou must disclose 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;
What trumps, 1.6 Confidentiality or 3.3 Duty of Candor before a tribunal
3.3 Duty of Candor!;
What is the additional duty of candor to a tribunal in an exparte proceeding?
3.3 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.;
What are the rules of fairness to opposing party and counsel?
1. No Obstruction of Evidence (a): Can take possession and examine, but must turn it over
2. No Falsification of Evidence or Offering Inducement to Witness (b): Reasonable fees for the professional services of witness is permissible, i.e. can pay expert witnesses or can pay for the transportation and expenses of coming into court.
3. No Disobeying a Court Obligation (c)
4. No Frivolous Discovery Request or Fail to Make Diligent Effort to Comply with Request (d)
5. No Assertion of Personal Knowledge/Opinion (e): Can argue the evidence but cannot assert personal opinions (i.e. cannot say, "I believe this witness because he is really credible")
6. No Request to Refrain from Giving Information (f): Cannot give money to a witness to go away unless (1) the person is a relative or employee or agent of the client; AND (2) the lawyer reasonably believes that person's interests will not be adversely affected by refraining from giving such information;"
Can you look at evidence? What are the rules there?
3.4 No Obstruction of Evidence (a): Can take possession and examine, but must turn it over;
Can you offer inducement to witnesses?
3.4 Nothing beyond Reasonable fees for the professional services of witness is permissible, i.e. can pay expert witnesses or can pay for the transportation and expenses of coming into court.;
What are the responsibilities for doc request?
3.4 No Frivolous Discovery Request or Fail to Make Diligent Effort to Comply with Request (d);
Can a lawyer assert personal knowledge/opinion in court?
3.4 Can argue the evidence but cannot assert personal opinions (i.e. cannot say, "I believe this witness because he is really credible");
Can you request a witness not give relevant information to another party?
3.4 No UNLESS (1) person is relative of client AND (2) lawyer reasonably believes the person's interest will not be adversely affected by refraining from giving such info;
What is the general rule about what a lawyer say publically regarding a trial?
3.6 No extrajudicial statements that the lawyer should know will be "disseminated publically: and will have "substantial likelihood of materially prejudicing proceeding" (Before 3.6 all public comments were unethical/impermissible) However see Safe Harbors. Gentile: Duties do not begin in court;
What are the safe harbors to the general rule about what a lawyer say publically regarding a trial?
3.6 Safe Harbor: May state (1) claim, offense, defense involved and identity of persons involved (2) public record info (3) that investigation is in progress (4) scheduling or result of litigation step (5) request for help in obtaining evidence (6) warnings of danger (7) extra stuff if criminal case
What are the EXCEPTIONS to the general rule that a lawyer can't act as an advocate at a trial where lawyer is likely to be a witness?
"3.7 UNLESS: (1) testimony relates to unconstested issue OR (2) disqualification would work substantial hardship on client
• Lawyer can act as advocate in trial in which another lawyer in lawyer's firm is likely to be called (But remember 1.7/9);"
What are the special duties of a prosecutor?
3.8 Duties: Prosecutor MUST: (1) refrain from prosecuting if not supported by probably cause (2) ensure accused has be advised of right to counsel (3) not seek waiver from unrepresented accused (4) making timely disclousres to defense of all evidences negating guilt (5) not subpoena laywer in proceeding to present evidence except in particular cases(basically its not protected info or the info is essential to complete ongoing investigation with no reasonable alternatives) (6) refrain from making extrajudicial comments that have "substantial likelihood of heightening public condemnation" (7) seek to remedy wrongful conduct;
What is Spoiliation?
Destruction/material alteration/failure to preserve evidence despite reasonable foreseeable litigation;
What are the relevant rules of E-Discovery/Spoiliation?
"Duty to Preserve: (When you reasonably anticipate litigation: "Litigation hold")
Disclosure of E-Discovery: Must disclose unless not reasonably available due to undue burden or cost
Clawback Provisions: If something was inadvertently produced: must notify other side it has occurred
Safe Harbor: Can't impose sanctions if info is lost despite good faith efforts to obtain
Potential Punishments for Failure to Comply: Default judgment, adverse inference, monetary sanctions;"
What is the adverse inference standard (Regarding E-Discovery)
AIS: (1) Party having control over evidence was obliged to preserve or produce (2) party that destroyed/failed to produce had culpable state of mind (3) missing evidence is relevant to party's claim/defense;
What should a lawyer do on the outset of litigation that will involve e-discovery?
Zubalake: Counsel must issue a litigation hold at outset of litigation and hold a meeting to communicate with key players about the proper response/procedure of preserving/producing electronic copies of relevant files, or else sanctions: (Generally does not apply to inaccessiblebackup tapes);
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