Legal Ethics

LEGAL ETHICSJoseph A. Wetch, Jr.Serkland Law Firm, Fargo, North Dakota

Information About Me

Attorney At Serkland Involved with

Disciplinary Cases (hidden from view)

Sit on SBAND Ethics Committee

Office: 701-232-8957 Email:

[email protected]

Call me anytime with questions…. But remember,

my advice is probably worth what you will pay for it.

Topic Description and Plan for your Last Hour of this Seminar

Legal Ethics in Context of Evidence Includes Pre-Trial Practice

Pleadings Motion Practice

Trial Practice Voir Dire Opening Examining Witnesses Closing Argument

This Stuff is Hard- I Worry About:

Century Code (challenges for cause, etc) Rules of Evidence (will my evidence get

in??) Rules of Court (am I doing it the right way?

Rules on closing, etc) Rules of Civil Procedure Rules of Professional Conduct

Rules for Imposing Lawyer Sanctions Rules of Lawyer Discipline

Media

This Stuff is Hard- But We Dare Greatly. . . .

“It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doers of deeds could have done them better. The credit belongs to the man who is actually in the arena: whose face is marred by the dust and sweat and blood; who strives valiantly; who errs and comes short again and again . . who knows the great enthusiasms, the great devotions and spends himself in a worthy cause; who, at the best, knows in the end the triumph of high achievement; and who, at the worst if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat.” -Theodore Roosevelt

Vocabulary

Rules of Professional Conduct What are they? Why do I care?

Rules of Lawyer Discipline What are they? Why you MUST care -1.2 (A)

Legal Ethics and Pleadings

Not This Kind:

This Kind: Petition of Edison, 2006 ND 250- Make sure

what you put in a pleading is correct

Legal Ethics in Motion Practice Discipl. Bd. v. Garaas, 2002 ND 181

Legal Ethics in Voir Dire

Voir Dire: The process where prospective jurors are examined before they are impaneled and sworn to try a case. Loveland v. Nieters, 54 N.W.2d 533, 536 (N.D. 1952).

Also used to determine bias. Because voir dire is used to determine bias and

support a challenge, “[l]awyers must limit questions to those that are designed to lay a basis for the lawyer’s challenges. . .The use of the voir dire to inject inadmissible evidence into the case is a substantial abuse of the process.” THE TRIAL PROCESS: LAW, TACTICS AND ETHICS, 3RD ED., TANFORD, J. ALEXANDER.


Rules: N.D.R.Civ.P. 47(a) N.D.R.Crim.P. 24

Statute N.D.C.C. § 27-09.1-02

Discrimination prohibited. A citizen may not be excluded from jury service in this state on account of race, color, religion, sex, national origin, physical disability, or economic status.


Case Law Loveland v. Nieters, 54 N.W.2d 533 (N.D.

1952) Dehn v. Otter Tail Power Co., 251 N.W.2d

404 (N.D. 1977) State v. Flohl, 310 N.W.2d 735 (N.D.

1981)


North Dakota Rules of Professional Conduct Candor. N.D.R.Prof. Conduct 3.3(a)(1): A

lawyer shall not knowingly 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.

In re Allen, 783 N.E.2d 1118 (Ind. 2002)--90 day suspension.


North Dakota Rules of Professional Conduct Fairness. N.D.R.Prof. Conduct 3.4 (e): A

lawyer shall not. . . . . 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; assert personal knowledge of facts in issue except when testifying as a witness.


North Dakota Rules of Professional Conduct Fairness. N.D.R.Prof. Conduct 3.4 (c): A

lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.


Potential Violations in Voir Dire: Engaging in racially motivated peremptory

challenges; Asking fact-specific hypothetical; Eliciting promises from jurors for a favorable

verdict; Asking Jurors about favorable pretrial publicity

(as an excuse to inform other Jurors about the publicity);

Asking questions that disclose inadmissible evidence (insurance policies)


Appealing to racial, ethnic or other cultural prejudices: State v. Mehralian, 301 N.W.2d 40 (N.D. 1981); “Mehralian's counsel objected to several questions asked by the assistant state's attorney both on voir dire of the jury and during the course of the trial itself. Specifically, defense counsel objected to the question asked of a prospective juror on voir dire by the assistant state's attorney who asked the juror, "Have you ever heard the phrase, 'Death to the infidel"?"

Opening Statement (not opening argument)

“The purpose of an opening statement is to inform the jury what the case is all about and to outline to it the proof which the State expects to present, so that the jurors may more intelligently follow the testimony as it is presented. In such statement, counsel for the State should outline what he intends to prove, and it is not necessary that he name the witnesses who will present each bit of evidence.” State v. Skjonsby, 319 N.W.2d 764 (N.D. 1982); State v. Marmon, 154 N.W.2d 55 (N.D. 1967).

Opening Statement (not opening argument)

Rules of Procedure N.D.R. Ct. 6.2: After the jury is impaneled

and sworn and the trial is ready to proceed, counsel for the plaintiff may make an opening statement to the jury. Counsel for the defendant may immediately follow with an opening statement to the jury or defer it until the plaintiff has rested.

Opening Statement

Argument is most common objection to an opening statement. State v. Smith, 998 S.W.2d 71 (Mo. 2002). Discipl. Counsel v. Breiner, 969 P2d 1258 (HI

1999) Need a volunteer…. Who wants to be a judge?

Referencing inadmissible evidence is improper Remember the rules of evidence –R. 402/403

State v. Welch, 426 N.W.2d 550 (N.D. 1988) Lange v. Cusey 379 N.W.2d 775 (ND 1985) Allen v. Kleven, 306 N.W. 2d 629 (N.D. 1981)

Opening Statement

Remember Sticks and Stones…Turner v. Commonwealth, 240 S.W.2d 80 (Ky. 1951)

“Rampage of Terror” State v. Valdivia, 24 P. 3d 661 (HI. 2001)

Opening Statement

“This is the big one, Louise. . .” Fred Sanford

Also Hawk v. Superior Court, 116 Cal. Rptr 713 (1974)

Opening Statement

Rules of Professional Conduct Rule 3.3(a)(1) Rule 3.4 (e)

Big Cow Accomplice Conviction Heart Attack

Witnesses

The object of all witness examinations, both direct and cross, is to elicit facts to discover the truth. Hunt v. Regents of University of Minnesota, 446 N.W.2d 400 (Minn. App. 1989)

You may only ask about or refer to evidence if you have a good-faith basis for your question. Commonwealth v. Bastone, 353 A. 2d 827 (Pa. 1976)

Witnesses

Factual Basis: Must have a factual basis for question under N.D.R.Prof. Conduct 3.4(e): may not allude to any matter that is not relevant or supported by admissible evidence

Ask- is the fact you seek to elicit true and is it possible the witness will confirm it? Duncan v. State, 776 So.2d 287 (Fla. App. 2000)

Legal Basis: evidence you seek must be admissible; must lay proper foundation; question must be in proper form.

Leading questions are permissible, but misleading or trick questions which elicit half-truths or make unproven factual insinuations are improper. Beasley v. State, 803 So. 2d 1204, 1212 (Miss. App. 2001); Hopkinson v. Chicago Transit Auth, 570 N.E.2d. 716 (Ill. App. 1991).

Witnesses-Examination Misconduct

Kresel v. Giese, 231 N.W.2d 780 (N.D. 1975). Questions to Defendant by Plaintiff’s attorney were used to “humiliate” and “cast prejudice upon him in front of the jury.” Intent to prejudice jury was obvious, and was a “breach of an attorney’s ethics.”

Anderson v. API Company of Minnesota, 1997 ND 6, ¶20-22

State v. Mayhorn, 720 N.W.2d 776 (MN 2006)

Witnesses-Examination Misconduct

What If I just pull the old “withdraw the question” trick?

Still subjects lawyer to ethical scrutiny- N.D.R.Prof. Conduct 3.4(c) for knowingly disobeying a rule of a tribunal.

State v. Phillips, 213 N.D. 355 (N.D. 1927)– don’t end up with egg on your face and lost credibility.

Witnesses

Rules of Professional Conduct North Dakota Rules of Professional Conduct,

Preamble: “A lawyer should use the law’s procedures only for

legitimate procedure and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system, and those who serve it, including judges, other lawyers and public officials.”

Rule 3.4 (c) and (e); Fairness to Opposing Party and Counsel

Rule 4.4 Third Persons (Johnson v. Johnson, 544 N.W.2d 519, (N.D. 1996)

Don’t threaten jury: Andrews v. O’Hearn, 387 N.W.2d 716 (ND 1986)

Don’t call the Defendant a Liar and Crook: Fox v. Bellon, 136 N.W.2d 134, 139 (ND 1965)

Don’t EVER say bad things about opposing counsel: Blessum v. Shelver, 1997 ND 152, ¶17

Golden Rule Referring to silence

Closing Argument

Closing Argument

Don’t make false statements during closing argument

Closing arguments must be confined to facts in evidence and inferences

State v. Mayhorn, 720 N.W.2d 776 (MN 2006)

United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996)

Closing Argument- Prosecution Misconduct

Conclusion

What ever you do, don’t ever, ever, show up in court drunk.

Watch this Lawyer in Las Vegas, who showed up drunk to a murder trial.

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