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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 2016TOPIC M: DUTIES TO COURTS3
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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
TOPIC M: DUTIES TO COURTS 3
• 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
TOPIC M: DUTIES TO COURTS 4
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
TOPIC M: DUTIES TO COURTS 5
[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
TOPIC M: DUTIES TO COURTS 6
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
TOPIC M: DUTIES TO COURTS 7
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
TOPIC M: DUTIES TO COURTS 8
“FALSE”• SIMPLY MEANS UNTRUE, WHETHER
INTENTIONALLY OR MISTAKENLY
2016
TOPIC M: DUTIES TO COURTS 9
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
TOPIC M: DUTIES TO COURTS 10
REALITY• NO LAWYER WANTS TO KNOW FOR
SURE
• NO LAWYER WANTS TO HAVE BELIEFS ABOUT TRUE/FALSE
2016
TOPIC M: DUTIES TO COURTS 11
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
TOPIC M: DUTIES TO COURTS 12
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
TOPIC M: DUTIES TO COURTS 13
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
TOPIC M: DUTIES TO COURTS 14
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
TOPIC M: DUTIES TO COURTS 15
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
TOPIC M: DUTIES TO COURTS 16
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
TOPIC M: DUTIES TO COURTS 17
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
TOPIC M: DUTIES TO COURTS 18
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
TOPIC M: DUTIES TO COURTS 19
• “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
TOPIC M: DUTIES TO COURTS 20
NO BREAKING OF RULES or ORDERS R. 3.4(c)
• UNLESS OPENLY
– CHALLENGE TO A RULE OR ORDER
2016
TOPIC M: DUTIES TO COURTS 21
DISCOVERY REQUESTS R. 3.4(d)
• NO FRIVOLOUS REQUESTS
• NO DODGING THE OTHER SIDE’S REQUESTS
– NEED REASONABLY DILIGENT EFFORT TO COMPLY
2016
TOPIC M: DUTIES TO COURTS 22
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
TOPIC M: DUTIES TO COURTS 23
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
TOPIC M: DUTIES TO COURTS 24
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
TOPIC M: DUTIES TO COURTS 25
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
TOPIC M: DUTIES TO COURTS 26
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
TOPIC M: DUTIES TO COURTS 27
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
TOPIC M: DUTIES TO COURTS 28
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
TOPIC M: DUTIES TO COURTS 29
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
TOPIC M: DUTIES TO COURTS 30
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
TOPIC M: DUTIES TO COURTS 31
• WHEN BLOCKED BY THE LAWYER-WITNESS RULE:
– A COLLEAGUE CAN TAKE OVER R. 3.7(b)
– BLOCKED LAWYER CAN ASSIST
2016