The rule in paragraph 1.10(a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did as a law student.

Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.

Duty of Candor in Litigation

3.3(a)(1)-(2) (a) A lawyer shall not knowingly: (1) 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; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel

3.3(a) A lawyer shall not knowingly: (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

Your client is being sued for breach of contract. Your main defense is that the plaintiff and the defendant rescinded their contract in writing. You present as evidence the written recession, which your client told you, and you believe, is genuine. It is in fact an obvious forgery, as shown by the fact that both your client and the plaintiff’s signature are in the same handwriting. That it is a forgery becomes abundantly clear at trial. Have you violated Rule 3.3?

Rule 3.1 Meritorious Claims And Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Your client is being sued for negligent driving. You know from your investigation that your client did not signal when he made the left hand turn that caused the accident. You stumble across a witness who is convinced that your client did signal. May you present the witness at trial?

Let’s say instead that you are only pretty sure that the witness is wrong. May you present the witness at trial?

May you refuse to present the witness at trial?

You discover that your client has falsely testified as a witness in a case in which you are not involved. Must you inform that court, even if you will reveal client confidences?

May you do so?

Your client indicates that he is going to testify in a civil case that he is 21 rather than 20 years old. The issue is likely to come up in the routine questioning at the beginning of your questioning of him or in the cross- examination. It is not relevant to your client’s actual civil liability. He wants to say he is 21, because a bartender at a bar he frequents will be in the audience.

What should you do if your client doesn’t tell you in advance of his intent to lie about his age, but you are instead surprised by the lie during your questioning of him? Do you need to take remedial action?

Assume that the surprise lie by your client in question above was relevant to his civil liability. What then?

What if you found out about the lie after there was a judgment in your client’s favor?

Your client, who is a criminal defendant in a murder case, is rather naive and indicates that he is guilty. He then asks you what type of testimony he should come up with. You say that he cannot testify falsely at trial. He insists that he will. What do you do?

Assume that you do withdraw. The client, a little wiser now, does not tell his second lawyer the truth. He gives perjured testimony at trial. Can you do anything about this?

Special Problems in Criminal Cases Tension with right to counsel and right to testify in one’s defense

Nix v Whiteside

“Narrative” approach

Rule 8.1 Bar Admission And Disciplinary Matters An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Bar application asks whether you ever suffered from “mental illness” defined as including use of prescription psychotropic drugs You took drugs for depression You think that you would accepted even if you answered yes Thinks it is an invasion of privacy and therefore answer no Violated MR 8.1?

Let’s say that they ask you whether you have used marijuana, a misdemeanor in the state May you explicitly refuse on 5th Amendment grounds?

Let’s say a student has cheated and was disciplined On the application the Dean says no cheating occurred Does applicant have a duty to correct the misapprehension created by the Dean?

Disciplinary proceedings are being brought against Lawyer for violating the duty of confidentiality The complainant’s witness offers evidence that suggests that the material was not confidential, although it actually was Must Lawyer correct this misapprehension?

except that this rule does not require disclosure of information otherwise protected by Rule 1.6. Lawyer1 is representing lawyer2 in disciplinary hearings –Lawyer2’s confidence should not be affirmatively divulged by lawyer Lawyer1’s information to correct a misapprehension caused by others is a confidence of another client, who does not want it divulged

Negotiation and Honesty to Third Parties

MR 4.1 In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

You and your client are engaging in the negotiation of an agreement between your client and a retailer. May you say that no significant competitor for your client's product is likely, even though you and the client know that a competitor is about to introduce a cheaper and better version of your product in a few weeks?

What about saying that you can’t accept an offer (when you could)?

Reporting another lawyer’s misconduct

Rule 8.3 Reporting Professional Misconduct (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

In re Himmel (Ill. 1988) Forsberg retained lawyer (Casey) in connection with motorcycle accident Casey got $35k settlement, but kept it all She hired Himmel to represent her against Casey Himmel promised to take only 1/3 of amount in excess of $35K Casey agreed to pay $75k settlement Forsberg agreed no civil or disciple action Himmel ultimately suspended for a year

The “no-contact” rule

Rule 4.2 Communication With Person Represented By Counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

You represent a defendant in a personal injury action. Without telling the plaintiff’s lawyer, you approach the doctor who treated the plaintiff after the accident and who will probably be called as a witness in the case.

Your client is suing the A Corp. for harm due to a defective product. You send an investigator to interview a janitor at the A corp’s factory without telling A Corp’s counsel.

- 4.2 (Comment 7) Contact with only if supervises, directs or regularly consults with the lawyer for the organization, has auth to obligate the organization with respect to the matter the matter - or whose act or omission may be imputed to the organization

MR 4.3 In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Imagine instead that you interview a former manager of the A Corp. without telling the A Corp’s counsel. Any problems under MR 4.2?

Does MR 4.3 prohibit you from approaching currently unrepresented potential plaintiffs against your client and making settlement offers to them without advising them of the appropriateness of getting the advise of counsel?

5.1 (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

5.2 a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.