Presentation on theme: "You represent a client who has pleaded guilty to being a felon in possession of a firearm. Before the sentencing hearing, the probation office issues a."— Presentation transcript:
You represent a client who has pleaded guilty to being a felon in possession of a firearm. Before the sentencing hearing, the probation office issues a presentence report showing a criminal history category II. You know that the PSR does not include some prior convictions from other jurisdictions that would increase your client’s criminal history category. The Government has no objections to the PSR. Neither you nor your client affirmatively or fraudulently attempted to conceal the prior convictions. At sentencing, the court asks you, “Do you agree with the guideline and criminal history calculations in the PSR”? SCENARIO 1: Misrepresentation of Criminal History Category Level in Sentencing Proceeding
1. How do you respond to the court and comply with your duty of candor to the tribunal? 2. If, during his presentence interview, your client made the misrepresentation about his prior criminal history, could or should you correct it? SCENARIO 1: Misrepresentation of Criminal History Category Level in Sentencing Proceeding (continued)
You represent John Doe in a conspiracy case where Joe Smith is a co-defendant. Joe Smith is being represented by Mya Torney. Ms. Torney’s behavior leads you to suspect that she has either a mental health or substance abuse problem that may be interfering with her representation of Joe Smith. SCENARIO 2: Responding to Opposing Counsel’s Mental Health or Substance Abuse Problems
SCENARIO 2: Responding to Opposing Counsel’s Mental Health or Substance Abuse Problems (continued) 1.Can you report your concerns directly to Joe Smith? 2.Can you take advantage of Ms. Torney’s behavior for the benefit of your client? What if your client instructs you to do so? 3.Are you required to report your observations of Ms. Torney’s behavior to the State Bar? 4.If you do not have knowledge that Ms. Torney has violated the Rules of Professional Conduct, may you report your observations about her mental health to LAP or other lawyer assistance program approved by the State Bar?
SCENARIO 3: Post ‐ Hearing Submission of Ex Parte Written Communications to a Judge You and the AUSA argue a motion before a judge. After the motion hearing, the judge takes the arguments under advisement. While waiting on the judge’s decision, you find additional authority to support your position. You believe the newly discovered authority is directly on point and may be dispositive to the issue before the court. You would like to provide the judge with the case law and accompanying argument in support of your client’s position. Can you engage in written ex parte communications with the judge by providing additional authority and argument in support of your client’s position?
SCENARIO 4: Attribution When Using the Written Work of Another On Monday, while waiting for your case to be called in court, you hear Mya Torney argue a case. The case she argues is remarkably similar to that of your client, John Doe. The sentencing memo for Doe’s case is due at the end of the week, and you have been unable to get a draft together. You obtain a copy of the pleadings in Ms. Torney’s case from CM/ECF. The sentencing memo filed in Ms. Torney’s case is perfect for John Doe’s case. You submit a sentencing memo in Doe’s case with Ms. Torney’s verbatim argument (tailored to Mr. Doe’s case, with properly cited court opinions and published or copyrighted works upon which are relied). You do not credit Ms. Torney, nor obtain her permission to incorporate her argument into Doe’s sentencing memo.
SCENARIO 4: Attribution When Using the Written Work of Another (continued) Did you violate any Rule of Profession Conduct through your unattributed use of Ms. Torney’s sentencing memorandum?
SCENARIO 5: The Fugitive Client Assume your client has escaped from custody and calls you to discuss his case. 1.Must you seek to withdraw? Attempt to ascertain the location of your client in order to inform the court? 2.If your client volunteers his location, must you inform the court? 3.Must you reveal your client’s location if you learn of it from your client’s relatives?