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| Explain a lawyer’s duty to file 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 doing so is not frivolous. This 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. |
| What conduct is prohibited by the duty of candor to the tribunal? | A lawyer shall not knowingly: a) 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. b) 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. c) 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. i) Definition of “knows”: The prohibition against offering false evidence applies only if the lawyer knows (rather than suspects) that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. |
| How long does the duty of candor last? | Duty continues until end of proceedings: this means that a final judgment has been affirmed on appeal or the time for appeal has expired. |
| What should a lawyer do if he knows his client will testify falsely in a civil case? | If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false. |
| What should a lawyer do if he knows his client will testify falsely in a criminal case? | Since the Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the right to testify on his own behalf, a lawyer who knows a criminal defendant will testify falsely should: a) Try to persuade the defendant not to testify falsely. b) Consider withdrawal, if that will solve the problem (usually it will not). c) Reveal the situation to the judge and the judge will decide what to do. i) (Note: some jurisdictions allow the defendant to testify in a narrative fashion—i.e., by just talking rather than having the lawyer ask questions—but you should apply the above approach on the MPRE.) |
| What must a lawyer do if he knows his client has engaged or will engage in criminal or fraudulent conduct related to the proceeding? | 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. Thus, the lawyer and their client must not hide evidence, bribe a witness, destroy evidence, intimidate a juror, etc. |
| What is an ex parte proceeding? What is a lawyer’s duty during an ex parte proceeding? | An ex parte proceeding is one where the other side is not present, such as an application for a temporary restraining order. At an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. This is because the other side is not there to present its case and the object of an ex parte proceeding is to yield a just result. |
| What pretrial conduct is prohibited by the duty of fairness to opposing counsel? | A lawyer shall not: a) Unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. c) Knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists. d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party. e) Request a person other than a client to refrain from voluntarily giving relevant information to another party, unless: i) the person is a relative or an employee or other agent of a client, and ii) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. |
| What trial conduct is prohibited by the duty of fairness to opposing counsel? | A lawyer must not: a) allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence; b) assert personal knowledge of facts in issue except when testifying as a witness; or c) state a personal opinion as to: i) the justness of a cause, ii) the credibility of a witness, iii) the culpability of a civil litigant, or iv) the guilt or innocence of an accused. |
| May a lawyer threaten an opposing party or counsel to gain an advantage? | Threat of criminal charges permitted. A lawyer may threaten criminal charges against her adversary to gain an advantage in a civil case (provided the threats are closely related and there is a factual and legal basis for the threats). Threat of disciplinary violation notification not permitted. However, a lawyer may not threaten to report opposing counsel for a disciplinary violation to gain an advantage. (If the violation is one that must be reported, the lawyer should simply report it, rather than threaten to report it.) |
| Is a lawyer permitted to communicate with or investigate a juror or potential juror? | A lawyer who is involved in a case must not communicate with a juror on that case on ANY subject while the case is ongoing. Investigation: A lawyer may investigate a prospective juror discreetly but may not contact them or their family. This includes reviewing postings on social media websites (so long as the lawyer does not send the juror a “friend” request personally or through an agent, as this constitutes a prohibited ex parte communication). A lawyer shall not communicate with a juror or prospective juror after discharge of the jury under any of the following circumstances: a) the communication is prohibited by law or court order; b) the juror has made known to the lawyer a desire not to communicate; or c) the communication involves misrepresentation, coercion, duress, or harassment. |
| May a lawyer make a statement to the media/press during a high-profile case? | A lawyer who is participating or has participated in the investigation or litigation of a matter (or any lawyer associated with their firm or government agency) shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. |
| What information may a lawyer reveal to the media/press during a high-profile case? | In a high-profile case, a lawyer may state: a) the claim, offense or defense involved, and, except when prohibited by law, the identity of the persons involved; b) information contained in a public record; c) that an investigation of a matter is in progress; d) the scheduling or result of any step in litigation; e) a request for assistance in obtaining evidence and information necessary thereto; f) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and g) in a criminal case, in addition to i) – vi) above: i) the identity, residence, occupation, and family status of the accused; ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; iii) the fact, time, and place of arrest; and iv) the identity of investigating and arresting officers or agencies and the length of the investigation. |
| In a high-profile case, what is a lawyer specifically prohibited from discussing with the media/press? (1) | 1) The character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, the identity of a witness, or the expected testimony of a party or witness. 2) In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement. 3) The performance or results of any examination or test, the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented. (1/2) |
| In a high-profile case, what is a lawyer specifically prohibited from discussing with the media/press? (2) | 4) Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration. 5) Information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial. 6) The fact that a defendant has been charged with a crime unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty. (2/2) |
| When is a lawyer permitted to reply to a statement made by another in a high-profile case? | A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. This is true even if the statement might otherwise raise a question under this rule. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. |
| When may a lawyer serve as a witness in a case in which he is representing a party? | Lawyer generally should not act as witness absent an exception: A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, unless: a) the testimony relates to an uncontested issue, b) the testimony relates to the nature and value of legal services rendered in the case, or c) disqualification of the lawyer would pose substantial hardship on the client. Other lawyer in lawyer’s firm may be a witness: a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness, unless precluded from doing so by the conflict of interest rules. |
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