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26 Cards in this Set
- Front
- Back
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Micro v. Macro
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Macro (Justice):
1. Categorical: worries about how things fit together w/ conceptual right (would protect Nazi rights) 2. Consequential: worried about end result (would not protect Nazi rights) Micro (fairness): 1. categorical 2. consequential Key question: is legal system supposed to about RESULTS or THE WAY WE GET THERE (cake v. ingredients). |
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Efficiency argument
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Some argue justice & fairness are so philosophical it is vague, should focus on efficiency, something we can study, has legitimacy:
1. Efficiency is powerful force b/c so singular 2. Efficiency would mean no fuzzy rules, just define rights so we can move on 3. Could have efficient dictatorship – political system puts breaks on efficiency |
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Rule 1.2: Scope of representation & allocation of authority between client and lawyer
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(b) A L's representation of client, including rep by appointment, does not constitute an endorsement of the client's political, economic, social, or moral views or activities.
-ABA position that L cannot be painted with brush of client |
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Professionalism
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Integrity Argument:
-must match actions and values of C to have integrity? -if you rep only those w/ values the same as you, means Ls become part of the problem-->hard to resolve problems; results in less independence of judgement if have the same values TPT: need occasional moral angst to stay truly independent |
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Truth & Confidences
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Variables to analyze for witness perjury:
-timing -Nature of case (crim. v. civil) -lawyer's state of mind (knowledge v. reasonable belief) -remedies: remonstrate w/ client, reveal to court, withdraw (if allowed), let criminal D testify in narrative, refuse to call client -legal considerations: text of jurisdiction's rule, constitutional right of criminal D to testify, client autonomy, duty of confidentiality and competence. Rules: 3.1-4.1 |
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Hypo: L learns about client fraud, but not until after case is over, what is the appropriate response? (civil v. criminal)
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civil:
1.ABA: when things are over, they are over 2. 3.3: responsibility to go to court and "correct things" ***criminal:, client has criminal record 1. some beaurocrat tells judge your client has no record -pre-code approach: NO ACTION REQUIRED -3.3: 1.6 still applies, that info is confidential 2. Judge asks client if has criminal record, client says, "I don't think so", and you know he is lying (not under oath): -old 3.3: nothing; C lieing, not L 3.3 changes: you MUST disclose; false testimony: engage in remedial efforts: -go to client & say you can’t do that, must tell court -If client says no, only remedial measure left is to withdraw -If you continue to represent client, your screwed -So tell client either disclose, or I withdraw 3. Judge asks L if client has record, you stand there quietly and don't answer; failure to response unethical? (think professionalism) -old: ok to keep mouth shut -3.3: if all you do is stand there, that is okay, but cannot lie, can try to deflect |
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Nix v. Whiteside:
L refuses to engage in helping client by offering perjury testimony |
1. Client claims 6th Amendment right to counsel (arguing entitled to someone focusing on their rights)
2. Argument is ineffective assistance of counsel [have majority AND concurrence] 3. Majority a. No ineffective here b/c what L did was w/in reasonable responsibility responses L could make – focuses on L & L’s responsibility [focus on system MACRO] b. Ethics defines constitutional rights 4. Concurrence a. Focuses on Ds rights, instead of looking at L [MICRO] b. Real Q is whether C had right to do this, C didn’t have right to screw up system c. Constitutional rights define ethics 5. Stevens Concurrence a. Worries about nature of “facts” themselves – pushes notion that as L have to worry about client first, so all suspicions resolved in favor of C & only move on issues of perjury if really know it is perjury b. Worried about constitutional rights **Ineffective assistance of counsel is NOT available if L won't help C commit perjury. AZ case held that if D’s L does narrative approach & just doesn’t refer to it in closing, that prosecutor can NOT get up & point that out, can’t hammer L for what C did!! (JUST AZ though) (State v. Lawn) |
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Notion of Knowledge
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3.3 requires that you "know" client is goign to do these things
crim: if you dont "know", can you do competent lawyering under 1.1? Slip and Fall in Lenox: know law is that she had to be there shopping to recover, do you tell story? -yes- 1.4: client is entitled to information -no- need real facts, not manufactured facts -if you don't tell them, they'll just lie to the next lawyer |
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FRCP 26
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1. Now under FRCP, affirmative duty on L to cough up info (didn’t use to be)
2. Standard practice used to be to do best to hide the ball 3. Used to not have to update discovery requests when things changed, now you do 4. What do you do in circumstances when tell client as things develop I will have to start coughing up things a. Big problem – notice pleading b. Only have to let other side know there is a dispute, don’t have to disclose theory of the case c. E.g., truck dispute, when file suit, don’t know whether wheel issue, bumper issue, etc. i. Type of case depends on type of stuff must disclose ii. First effort – try and narrow what talking about iii. Whereas Ps want to get everything, fishing expedition |
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How far will you go? pushing the truth
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All hinges on what you KNOW--> more concerned, less will push the knowledge requirement
1. One thing if they ‘say it” 2. Another if you just infer 3. If you disclose, C will lie & say I never said that → can’t get in writing b/c they don’t trust you → risk being brought up on ethics charges |
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Hypo: Out Carousing with Mikey (told you afterwards that he remembered he wasn't where he said he was on the stand)
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iv. Rule 3.3:
1. Have to know it is false testimony, doesn’t require perjury (false is larger category) 2. ALSO have 3.3(b) ← criminal or fraudulent conduct (perjury) v. L didn’t put up false testimony (didn’t know false before hand), but 3.3 – need to take “reasonable remedial measures” 1. May require disclosure to court vi. STEPS 1. 1) verify testimony was in fact false (if not, no issue) 2. 2) confront client & say “what are you doing to me, this looks false, looks like your playing a game” a. once confront – may say mistake, wrong dates; could say no, that is true i. if he tries & say it is true, you withdraw ii. if court won’t let you, try & withdraw that testimony & D’s testimony iii. can you really continue to be good advocate in this circumstance? iv. If court asks WHY, you can actually answer IF confidential, but NOT attorney client privilege – must thread the line (Rule 3.3(c)) |
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Fostering Falsity v. Advancing the Truth: literal truth
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1. A literally true answer is not perjury, even if it is misleading
2. It is clear that Ls are forbidden themselves to lie or to use or exploit lies from others a. BUT Ls are NOT forbidden to mislead or encourage misperception by other people b. Professional ethics → but you are trained to present facts w/ a spin 3. Bronston case – if what you state is actually true → not perjury 4. DeZarn (later) – content matters – if knew what seeking, your response may be held as perjury (i.e. glasses case) → may be perjury (if viewed in context) 5. E.g., “Did you communicate with Cassie” (p. 410) – asked if he communicated w/ Cassie, he responded “I did not communicate with Cassie” (knowing she left him a voicemail), so how the court defines “communicate” and which case it follows depends on if perjury! a. Could you coach him to do this? |
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Fostering Falsity v. Advancing the Truth: Improper Argument
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1. Improper Arguments: there must be limites to pleas of pure passion & there must be restraints against blatant appeals to bias & prejudice
a. Race card or suggestion about the nature of other side being untruthful. This is proper b. Rule 4.4 is a good reference. Shall not “use means that have no substantial purpose other than to embarrass, delay or burden a 3rd person” c. U.S. v. Crawford: Prosecutor failed to put on evidence of ownership of gun, but L for D knew they had it. In closing D points this out, Prosecutor argues to re-open case to put on b/c L knew, then argues that D knew it in Prosecutors closing i. Appellate court said no, all wrong, D was permitted to argue that even though knew didn’t present, not allowed to reopen case! ii. Is that right? Or is it in affect arguing false inferences? |
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Fostering Falsity v. Advancing the Truth: False Inferences:
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a. If bad evidence htat cannot be excluded, two options
i. Try and discredit evidence by arguing witness is lying or documents is false ii. Or ask jury to draw an inference favorable to his client. [other OL:] a criminal defense L can argue for a false inference as long as he does not rely on perjury testimony, but a prosecutor cannot argue for a false inference iii. No good answer about “can I submit to you this is what really happened” b. Criminal – gloves off (cross people you wouldn’t normally cross) i. Some reject that there should be a distinction |
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Maxwel Silver Handle case
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1. D charged with murder, admits didn’t know victim had gun, but victim did, should you plead self-defense even though know it is false? Should he create that inference?
3. Analysis – won’t call D b/c know it is false testimony! IMP! |
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Misstating facts, precedent, or the record
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1. Rule 3.3(a)(1): a lawyer shall not make a false statement or material fact or law to the tribunal.
a. Don’t want to make the judge mad. You can play with juries, just don’t play with judges 2. Difficult to make argument to judge that other side is doing it though b/c judges fed up with this type of crap → if get them to react, they can do a lot, but hard to get them to react 3. Misstating facts, record, precedent IS unethical! 4. Double standard a. Judges expected to be treated good (carve self out) b. But we expect juries can be treated differently with spin & such 5. Rule 4.1(a): contains a prohibition on misstating material fact or law to 3rd parties 6. 1.4 → information rule: C are entitled to have all information necessary. If you conceal a bad case from client, you can be hammered under 1.4. a. 3.3 to judge → narrower. Ethical responsibility only if in your jurisdiction & directly controls! |
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Obligation to reveal adverse legal authority
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1. General rule under 3.3: if a case is adverse to position & in jurisdiction, you MUST cite to it to the court. You then have to argue this adverse authority in an attempt to distinguish it
a. IN that jurisdiction; AND b. Directly on point! i. Not clear how close it has to be 2. L would want to do this anyways, even if different jurisdction a. Was bigger deal pre-computers 3. [other OL: if the L discovers that the C has no case after accepting it, he must withdraw Rules 1.16(a), 3.1] |
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Rule 3.3 v. 4.1 WITH 1.6
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a. 3.3 – takes 1.6 confidentiality off table if judge asks you about it (still have atty/cli)
b. 4.1 – puts 1.6 back on table, can just say “engage in discovery if need” c. Rule 4.1 i. (a) make a false statement of material fact or law to third person; OR ii. (b) fail to … unless disclosure is prohibited by Rule 1.6. 1. Rule 1.6 has “may” – so it would seem there is very little that 1.6 requires you to keep mouth shut! a. Majority of states use “may” in 1.6 so that L’s don’t have to disclose 2. SO, is 4.1 meant to in effect repeal much of 1.6 protection, i.e., in conversations you have more requirement to reveal? a. PROF – thinks modifications to 1.6 didn’t really have 4.1 in mind b. NO AUTHORITY 3. If in state with “prohibited” language in 4.1, but a “may” reveal in 1.6, seems have responsibility to open mouth! |
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Negotiations; *not an intrinsically legal service
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b. KEY
i. If negotiation involves a lawyer, does the negotiation change character? ii. Say buying car from used car dealer, does it change if lawyer is one party? 4.1 line is VERY BLURRY in negotiations |
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Rule 4.1 – truthfulness generally
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i. Lawyer should not knowingly make false statement of material fact or law to third person [be honest]
ii. Comment [2]: 1. Rule refers to statement of fact! 2. Whether it should be considered a fact depends on circumstance a. Only L can imagine a statement of fact that may not be fact depending on circumstances when it is stated 3. About: under general accepted conventions in negotiations, certain kinds of statements aren’t considered facts a. Basically, in negotiations, you can do as you please [is that ethics?] |
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Noisy Withdrawal
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a. Rule 1.16 (withdrawal) → kicks in when client wants you to do something to violate the rules
b. Can’t argue that client made you do it. You should just withdraw c. Said if you withdraw and takeback all work that you did, that is NOT inappropriate (1.10) d. This was merely comment to rule e. ABA took comment & made it mandatory in one circumstance – bank fraud → mandatory! i. Must noisy withdraw & raise red flags |
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Virzi case:
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i. P died while in negotiations, both side knew P would be great witness for P
ii. L didn’t tell Defense side that P died, settled, D learned & went to court iii. Court held that was nasty, settlement inappropriate → start over! Meaning: i. Is ethical responsibility to let other side when client dies, is that? ii. Or does it stand for prop that you have to let other side know what there is anything important that happens in the case? 1. That puts you at disadvantage? iii. What if you see other sides argument & see they messed up, must you tell them? iv. Say they read a document that gives impression your insurance is smaller than is, must you correct? 1. Affirmative duty? v. Must you point out there is something else that they don’t know? |
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State v. Addison
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MUST disclose other insurance policy if they don’t know about it in settlement negotiation (even if they can get it through discovery)!
1. Different than Virzi b/c not hiding the ball, guy in Virzi said stuff suggesting still alive 2. Comes back to settlement being special kind of K, one endorsed by court |
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Unrepresented Person
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i. Rule 4.3 – ought to involve it, but never comes up … basically…
ii. Can’t give them legal advice. You begin to look like their lawyer iii. ONLY advice you can give is “get a lawyer” hypo: L represents buyer in proprety, seller is old man, deal screws old man, biggest kicker, old man pays fees 1. Paying fees doesn’t make him client (RULE ???) 2. Is there enough relationship for seller to ultimately unravel deal? a. L tries to say not his lawyer b. Court disagrees, says no, in circumstance you have affirmative responsibility to step back & be “objectively fair” i. Have to not only be responsible to your client, but stop short of victimizing other side ii. [how far can you push this] 3. other cases say – other side should have gotten lawyer, too bad 4. think professionalism! |
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Other side makes civil procedure mistake
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ABA says you could tell other side without telling your client!
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Rule 4.4(b): receiving inadvertent fax
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a lawyer who receives a document relating to the representation of the lawyer's client and KNOWS or REASONABLY SHOULD KNOW that the DOCUMENT was INADVERTENTLY SENT shall PROMPTLY NOTIFY the SENDER.
-all you have to do, no provision about not being able ot use it. |
