topic m: duties to courts 2016 p.r. prof. janicke

TOPIC M:DUTIES TO COURTS

2016 P.R.Prof. Janicke

TOPIC M: DUTIES TO COURTS 2

A NON-FRIVOLOUS BASIS FOR EVERYTHING

• LAWYER MUST HAVE A BASIS “IN LAW AND FACT” FOR EVERY ASSERTION AND FOR EVERY CONTROVERTING R. 3.1

• CAN BE A GOOD-FAITH ARGUMENT FOR MODIFICATION OR REVERSAL OF EXISTING LAW– BUT YOU MUST SAY SO

2016


• THE PROVISION FOR MODIFICATION OR REVERSAL WILL NOT WORK FOR A STATUTE, UNLESS IT IS UNCONSTITUTIONAL

• IT WILL NOT WORK FOR A RULE, UNLESS THE TRIBUNAL HAS POWER TO CHANGE IT

2016


CRIMINAL PLEA OF “NOT GUILTY”

• IS OK REGARDLESS OF THE KNOWN FACTS AND EVIDENCE– “REQUIRE THAT EVERY ELEMENT BE

ESTABLISHED” R. 3.1, LAST SENTENCE

• BUT AN AFFIRMATIVE DEFENSE WOULD BE BOUND BY THE RULE

2016


[TEXAS CIVIL]• THE PRACTICE OF PLEADING A

GENERAL DENIAL IS OKed IN TEXAS RULES Tex. R. 1.03 C3

• AN EXCEPTION TO THE GENERAL U.S. RULE DISCUSSED HERE

2016


MORE OF THE SAMER. 3.3

• NO FALSE STATEMENT OF FACT OR LAW ALLOWED

• MUST CORRECT ANY FALSE STATEMENT PREVIOUSLY MADE BY THE LAWYER

• MUST DISCLOSE KNOWN “DIRECTLY ADVERSE” AUTHORITY

2016


R. 3.3, CONT’D.• MUST NOT OFFER EVIDENCE

“KNOWN TO BE FALSE” R. 3.3(a)

• IF IT HAS BEEN OFFERED BY LAWYER, CLIENT, OR WITNESS “CALLED BY” THE LAWYER, LAWYER MUST TAKE REMEDIAL ACTION

2016


“FALSE”• SIMPLY MEANS UNTRUE, WHETHER

INTENTIONALLY OR MISTAKENLY

2016


BELIEVED TO BE FALSE?• THE RULE ALLOWS A LAWYER, IN

MOST CIRCUMSTANCES, TO REFUSE TO PRESENT EVIDENCE IF THE LAWYER “REASONABLY BELIEVES” IT TO BE FALSE R. 3.3(a)(3)

• EXCEPTION: TESTIMONY OF CRIMINAL DEFENDANT (CONSTITUTIONALLY PROTECTED”

2016


REALITY• NO LAWYER WANTS TO KNOW FOR

SURE

• NO LAWYER WANTS TO HAVE BELIEFS ABOUT TRUE/FALSE

2016


CLIENT’S PLANR. 3.3(b)

• IF LAWYER KNOWS CASE PLAN IS CRIMINAL OR FRAUDULENT, REMEDIAL MEASURES ARE NEEDED– INCLUDING DISCLOSURE TO TRIBUNAL,

IF NECESSARY

• EXAMPLES: THREATENING OR BRIBING JURORS OR WITNESSES; TESTIFYING FALSELY

2016


RULE TRUMPS CONFIDENTIALITY

• REMEDIAL RULE CONTINUES UNTIL END OF THE PROCEEDING R. 3.3(c)

• OVERRIDES CONFIDENTIAL INFO RULE 1.6 R. 3.3(c)

2016


WHAT REMEDIAL MEASURES?

• FIRST, TAKE UP WITH CLIENT C10

– MAKE A PLAN TO RECTIFY

• IF THAT FAILS, CONSIDER:

– WITHDRAWING [POSSIBLE SIGNAL] C15

– INFORMING THE COURT FLAT OUT2016


SPECIAL RULE FOR EX PARTE PROCEEDINGS

E.G., TEMPORARY RESTRAINING ORDER, ADOPTION

• LAWYER MUST DISCLOSE ALL KNOWN MATERIAL FACTS THAT ARE ADVERSE R. 3.3(d)

• ANYTHING NECESSARY TO AN “INFORMED DECISION” R. 3.3(d) C14

2016


DUTY TO EXPEDITE LITIGATION R. 3.2

• DOES NOT MEAN RUSHING IN

• RULE PRECLUDES:

– ROUTINELY SEEKING CONTINUANCES FOR CONVENIENCE OF COUNSEL C1

– LONGSTANDING LOCAL CUSTOM IS NOT AN EXCUSE C2

2016


MOTIVATIONS FOR VIOLATING THIS RULE

• CLIENT ADVANTAGE – E.G., DATE FOR FINANCIAL REPORTING; MERGERS; ELECTION DAY; BANK CREDIT

• HELPFUL PRESS COVERAGE – E.G., STOCK PRICE AIDED BY LONGSTANDING VIGOROUS DENIALS

2016


DUTY OF FAIRNESS TO OPPOSING PARTY AND

COUNSEL R. 3.4

• A LONG RULE

• PARA. (a): NO “UNLAWFULLY” OBSTRUCTING ACCESS TO EVIDENCE

– INCLUDES SPOLIATION– A BIG TOPIC TODAY

2016


PARA. (b):• NO FALSIFYING EVIDENCE (EVEN IF

NOT OFFERED)

• NO PROHIBITED INDUCEMENTS TO WITNESSES– CAN PAY EXPENSES, BUT NO FEE FOR

FACT WITNESSES C3– NO CONTINGENT FEE FOR EXPERT

WITNESSES C3

2016


• “OBSTRUCTION OF JUSTICE” IS THE EASIEST OF ALL CRIMINAL TRAPS FOR A LAWYER OR CLIENT TO FALL INTO!

• ONE PHONE CALL WILL DO IT

• ONE WRONG ANSWER IN “JUST A ROUTINE INQUIRY” WILL DO IT

2016


NO BREAKING OF RULES or ORDERS R. 3.4(c)

• UNLESS OPENLY

– CHALLENGE TO A RULE OR ORDER

2016


DISCOVERY REQUESTS R. 3.4(d)

• NO FRIVOLOUS REQUESTS

• NO DODGING THE OTHER SIDE’S REQUESTS

– NEED REASONABLY DILIGENT EFFORT TO COMPLY

2016


COMMENTS AT TRIALR. 3.4(e)

• NO ALLUDING TO IRRELEVANT THINGS

• NO ALLUDING TO THINGS THAT WILL NOT BE SUPPORTED BY EVIDENCE

• NO ASSERTING PERSONAL KNOWLEDGE (“I KNOW” “WE ALL KNOW”) OR OPINION

2016


NO BLOCKING WITNESSESR. 3.4 (f)

• NO REQUESTING A NON-CLIENT TO REFRAIN FROM VOLUNTARY TESTIMONY

– EXCEPTION: EMPLOYEES OF CLIENT, IF NO HARM TO THEM

2016


NO BRIBING JUDGES OR JURORS

R. 3.5

• OR EVEN PROSPECTIVE JURORS

• NO COMMUNICATING EX PARTE WITH ANY OF THE ABOVE, UNLESS ALLOWED BY LAW OR BY COURT ORDER– APPARENTLY FORBIDDEN ON ANY

SUBJECT2016


THIS MEANS: NO DISCUSSIONS WITH JURORS PRE-VERDICT

• LAWYERS (EVEN THOSE NOT ON THE CASE) CANNOT DISCUSS ANYTHING WITH A SITTING JUROR – NOT EVEN THE WEATHER R. 3.5(b)

• NO EXCEPTIONS

2016


RESTRICTIONS ON POST-VERDICT TALKS WITH JURORS

• COMMONLY DONE

• OK, UNLESS:– PROHIBITED BY COURT RULE OR ODER;

or– JUROR DOES NOT WANT TO TALK; or– COERCION, HARASSMENT

R. 3.5(b)2016


TRIAL PUBLICITYR. 3.6

• NO PUBLIC COMMENT ON PENDING CASE IF:

1. IT WILL BE DISSEMINATED PUBLICLY AND

2. CREATE SUBSTANTIAL LIKELIHOOD OF “MATERIALLY PREJUDICING” AN ADJUDICATIVE PROCEEDING

2016


SAFE HARBOR #1 R. 3.6(b)

• PUBLIC COMMENT OK IF LIMITED TO:

– CLAIM OR DEFENSE INVOLVED– INFO IN THE PUBLIC RECORD– SAYING INVESTIGATION IS IN PROGRESS– SCHEDULING OF COURT STEPS– REQUEST FOR ASSISTANCE IN

GATHERING EVIDENCE– WARNING OF DANGER, IF PRESENT

2016


SAFE HARBOR #2 R. 3.6(b)(7)

• IN ADDITION TO #1, IN A CRIMINAL CASE, OK TO REVEAL:

– D’s IDENTITY, RESIDENCE, OCCUPATION, FAMILY STATUS

– NEEDED INFO FOR APPREHENSION– TIME AND PLACE OF ARREST, IF ANY– ID OF INVESTIGATING OFFICERS AND

AGENCIES2016


LAWYER AS WITNESSR. 3.7

• IS OK, BUT CANNOT ADVOCATE THE CASE– EXCEPTIONS:

• UNCONTESTED ISSUE• SUBSTANTIAL HARDSHIP TO CLIENT• ON VALUE OF LEGAL SERVICES RENDERED

2016


• WHEN BLOCKED BY THE LAWYER-WITNESS RULE:

– A COLLEAGUE CAN TAKE OVER R. 3.7(b)

– BLOCKED LAWYER CAN ASSIST

2016

topic m: duties to courts 2016 p.r. prof. janicke

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