CLASS 9

The Lawyer as an Advocate

Litigation Ethics Issues
Litigation Issues or
You can’t do whatever your client wants…
 Competing officer of the court vs. representative of client.
Meritorious vs. frivolous claims
Candor to tribunal
Fairness to opposing party and counsel
Truthfulness in representing client
Witness preparation

Meritorious Claims and Contentions-Rule-Rule 3.1

-Can’t do whatever your client wants

M.R. 3.1 Cannot bring or defend case unless is basis to do so that is not frivolous. Attorneys for
criminal defendant can defend proceeding requiring every element of claim be established.
- Why difference?
- Objective test for determining what is frivolous – follows rules of civil procedure, Rule
11, prohibits frivolous matters, remedy in civil procedure-monetary sanction; Rule of
Professional Conduct-subject to discipline.
- Cannot merely rely on what client says
In Illinois, lawyer filed numerous consecutive suits on the basis of what client said even
if there was evidence to the contrary. Court sanctioned lawyer. Could be viewed as
frivolous.
- Must review information submitted by client to see if it supports client’s claim
-Don’t have to develop all facts pre-filing-can develop through discovery but must be
able to make good faith argument for client’s position Comment 2

Advocate
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.
Advocate
Rule 3.1 Meritorious Claims And Contentions - Comment
[1] The advocate has a duty to use legal procedure for the fullest benefit of the
client's cause, but also a duty not to abuse legal procedure. The law, both
procedural and substantive, establishes the limits within which an advocate may
proceed. However, the law is not always clear and never is static. Accordingly, in
determining the proper scope of advocacy, account must be taken of the law's
ambiguities and potential for change.
[2] The filing of an action or defense or similar action taken for a client is not
frivolous merely because the facts have not first been fully substantiated or
because the lawyer expects to develop vital evidence only by discovery. What is
required of lawyers, however, is that they inform themselves about the facts of
their clients' cases and the applicable law and determine that they can make good
faith arguments in support of their clients' positions. Such action is not frivolous
even though the lawyer believes that the client's position ultimately will not prevail.
The action is frivolous, however, if the lawyer is unable either to make a good faith
argument on the merits of the action taken or to support the action taken by a
good faith argument for an extension, modification or reversal of existing law.
[3] The lawyer's obligations under this Rule are subordinate to federal or state
constitutional law that entitles a defendant in a criminal matter to the assistance of
counsel in presenting a claim or contention that otherwise would be prohibited by
this Rule.

California 3.1
Rule 3.1 Meritorious Claims and Contentions (a) A lawyer shall not:
(1) bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal,
without probable cause and for the purpose of harassing or maliciously injuring any person; or
(2) present a claim or defense in litigation that is not warranted under existing law, unless it can
be supported by a good faith argument for an extension, modification, or reversal of the existing
law

A
Washington D.C. law judge broke down in tearms and had to take a break from his
testimony because he became too emotional while questioning himself about his experience
with a missing pair of pants. He refused to back down and he lost his license.
In re Roy Pearson,
15-BD-031, No. 2007-D149 (DC June 3, 2016)
.
You have to Tell the Court about Known Adverse Precedent
even if your Opponent doesn't
Shall not:
Fail to disclose to tribunal adverse legal authority in controlling jurisdiction known to
lawyer to be directly adverse to position of client and not disclosed by opposing counsel
3.3(a)(2)
You don’t disclose adverse facts but you have disclose adverse law.

Rule 3.3 Candor Toward The Tribunal

(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; or
(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.
(d) In 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.

Rule 3.3 Candor to Tribunal

Rule 3.3, paragraph 1
Disclosure to Tribunal
Lawyer shall not knowingly:
 Make any false statement of fact or law to a tribunal or
 Fail to correct a false statement of material fact or law previously made to tribunal by
lawyer

A Story Out of the Seventh Circuit

 Man named Clark convicted in federal court of possessing crack cocaine with intent to
distribute-sentenced to 240-month prison term;
 Lawyer, licensed for 6 years, agrees to represent Clark before 7th Cir. for $15,000 fee;
 Lawyer receives full fee, files notice of appeal;
 Pays ghostwriter $5,000 to craft appellate & reply briefs;

7th Circuit sets oral argument

 On morning of argument, Lawyer calls 7th Circuit. Tells Deputy Clerk that he is ill,
“vomited”, & cannot appear;
 Statements were false because he was not ill;
  Lawyer did not want to appear was because he was unprepared to present oral
argument;

The 7th Circuit Responds

 Deputy Clerk tells Lawyer to keep phone turned on should Court require him to appear
for oral despite claim of illness;
 Clerk's office contacts Lawyer to tell him appearance required. Lawyer does not answer
phone & does not return phone messages;
 Court proceeds with oral. Gov’t. argues, Lawyer absent;
 Court issues rule to show cause.
The 7th Circuit Acts

 Rule provides that, if medical issues precluded Lawyer from performing professional
obligations, he had to provide “appropriate medical documentation”;

 Lawyer answers rule by admitting he was medically able to perform his obligations &
should have appeared;

 7th Cir. later affirms Clark’s conviction. Court finds Lawyer acted unprofessionally,
censures him, fines him $1,000.

The ARDC Enters the Picture

 Later, Lawyer sends Clark a letter informing him of adverse decision;

In letter, Lawyer admits he was censured for failing to appear for oral;
 Lawyer falsely tells client that he was ill on morning of oral;
 Clark files ARDC grievance. In response to grievance, Lawyer falsely states that illness
prevented him from attending oral. Lawyer suspended for 60 days-ordered to make
restitution.

You can be accused of lying even for himself. 3.3

In re Finn, M.R. 26528, 2013PR00103
(March 14, 2014)

Effective Witness Preparation

1.2 d you cant assist a client to commit a crime; you cant ask your client to lie
 Essential part of any matter before a tribunal
 Integral to lawyer’s role as an advocate and adversary
 Must remain faithful to ethical obligations to truth

What does that mean?

Restatement Third, The Law Governing Lawyers

Topic 4-Advocates and Evidence

Provides excellent guidance for what is allowed in preparing witness for testimony

Restatement § 116

Interviewing and Preparing a Prospective Witness

Preparation consistent with this rule includes:
- Discussing witness’s role and effective demeanor
- Discussing witness’s recollection and probable testimony
- Revealing to the witness other testimony or evidence that will be presented and
asking the witness to reconsider the witness’s recollection of events in that light
- Discussing applicable law
- Reviewing factual context win which witness’s observations or opinions will fit
- Reviewing documents or other physical evidence that may be introduced
- Discussing probable lines of hostile cross-examination
 Restatement § 116

Custody trial- boyfriend: girlfriend gave alcohol to 6 month baby. girlfriend was coached by
lawyer to lie: tell them that you didn’t do that. Lawyer was sanction for subordination.

Witness preparation may include rehearsal of testimony

Lawyer may suggest word choice to make witness’s meaning clear

Witness Preparation. What do you think of this one? Anatomy of a Murder, Jimmy Stewart.

Rules re: client perjury

Model Rule 3.4(b) A lawyer shall not falsify evidence, counsel or assist a witness to testify
falsely, or offer an inducement to a witness that is prohibited by law.
Model Rule 3.3 (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) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, had 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.
Actual knowledge but this may be inferred from circumstances.
If your client is lying as he is in the witness stand: Iowa, other side starts asking
question, senior lawyer is asking for a break and ask “why are you upset?”Wife: and she was
lying because she was in truth with the young associate, with an affair. Young associate
disbarred.

5 Rs—if your client lies

 REMONSTRATE with the client- discuss with the client.
 RECESS the proceeding- once you know your client is lying ask for a recess. I need a
recess in order to rectify my Professional Responsibilities.
 RECTIFY the perjury by insisting the client take prompt action to correct the false
statement – correct the false testimony. NO perjury if rectified in the same proceeding.
You tell your client: Correct it because if not, I will withdraw and will have to inform the
court.
 RESIGN from representation, if possible, if client refuses to rectify
 REVEAL falsity to opposing counsel or court if withdrawal does not remedy the
situation or if resignation is not possible
 When you know your client is lying……
The Duty of Honesty
 It is professional misconduct for a lawyer to engage in dishonesty, fraud, deceit, or
misrepresentation. [8.4 (c)]

Maintaining The Integrity Of The Profession

Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
Xxx
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

Duty of candor to clients [1.4, 2.1]

Counselor
Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment
and render candid advice. In rendering advice, a lawyer may refer not only to law
but to other considerations such as moral, economic, social and political factors, that
may be relevant to the client's situation.
Counselor
Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment
and render candid advice. In rendering advice, a lawyer may refer not only to law
but to other considerations such as moral, economic, social and political factors, that
may be relevant to the client's situation.

Duty of candor to courts [3.3, 3.4]

Advocate
Rule 3.3 Candor Toward The Tribunal
(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; or
(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.
(d) In 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.
Rule 3.4: Fairness to Opposing Party & Counsel
Advocate
Rule 3.4 Fairness To Opposing Party And 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) 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, or state a personal
opinion as to the justness of a cause, the credibility of a witness, the culpability of a
civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely
affected by refraining from giving such information.
Duty of candor to others [4.1]
Transactions With Persons Other Than Clients
Rule 4.1 Truthfulness In Statements To Others
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.

California Rules
Rule 3.3
Remember: Strict protection of client confidentiality
See, for example:

CLASS 10

Litigation Issues, Continued

Client with a bloody knife- return it to client and some times will require that it should
be turned over to government.

Negotiations
What are the limits in negotiations?
Lawyers engage in puffin.

Can lawyers lie when negotiating?

Rule 4.1

Transactions With Persons Other Than Clients

Truthfulness in Statements to Others
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 when disclosure is necessary to avoid assisting a
criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6
(confidentiality rule).

Purchase: you want to increase offer, you can say: your offer is ridiculous. You can’t say:
my client is less than 1M when your client did not.

ABA Op. 06-439 (2006)

The opinion recognizes that “it is not unusual in a negotiation for a party, directly or
through counsel, to make a statement in the course of communicating its position that is
less than entirely forthcoming.” The opinion reaffirms that lawyers may engage in
puffing or posturing when remarking, in a negotiation, about a willingness to make
concessions or in making a demand. The opinion notes, “A party in negotiation might
exaggerate or emphasize the strengths, and minimize or de-emphasize the weaknesses,
of its factual or legal position.” The opinion states that the same rules apply in a
“caucused mediation”.

Contract Drafting
Form of negotiation
Traditionally thought to be non-adversarial

Can you lie?

Can you engage in sharp practices?
Can you capitalize on your adversary’s error?
Prohibitions
A lawyer who knowingly drafts fraudulent representations in a contract on behalf of a
client assists the client in fraud and violated Rule 1.2(d).

Client-Lawyer Relationship
Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client
And Lawyer

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is
criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of
conduct with a client and may counsel or assist a client to make a good faith effort to determine the
validity, scope, meaning or application of the law.
Where a transcription of an agreement contains a true scrivener’s error, an attorney
cannot allow the client to benefit from the mistake and must notify the other party. (see,
e.g., ABA Op. 86-1518)

Example
First attorney tenders a draft contract. The second attorney returns it, saying that it is
acceptable, and both attorneys sign it. However, the second attorney has made changes
to the draft and did not call the first attorney’s attention to the changes. Not allowed.

Did the second lawyer act appropriately?

NO……Remember:
A non-disclosure can be the equivalent of an affirmative misrepresentation.
See, e.g., Hand v. Dayton-Hudson, 775 F.2d 757 (6th Cir. 1985)
 Example
The first attorney asks for a change in a term, which the second attorney agrees to, but
the first attorney does not inform the second attorney that the change in that term
affects a term in another part of the agreement that is not favorable to the party
represented by the second attorney. No obligation, competence of another lawyer.
Ex.) a choice of law provision, where the law in the chosen jurisdiction affects another
part of the agreement.
Does the first attorney have a duty to inform the second attorney that the change may
affect another part of the agreement?
ANSWER: Maybe not, but…..
Rule 1.1 requires the second lawyer to provide competent representation
Does Rule 1.1 require the second lawyer to recognize the ripple effects?
Client-Lawyer Relationship
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Even if first attorney has no affirmative obligations to inform second attorney, are there
any good reasons to do so?
Rule 4.2, 4.3

The “Anti-Contact” Rules

Transactions With Persons Other Than Clients

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.

Who is a “Person?”

Rule originally prohibited contact with a party. “Parties” was replaced by “persons” to
clarify that the rule applies to anyone known to be represented regarding the subject of
the intended communication, not just to those who have been named parties to a
proceeding.
ABA Annotated M.R., Seventh edition, (2011)
Example

 You are representing plaintiffs in a class action lawsuit against a pharmaceutical

company, alleging that the company manufactured and sold a drug that has
caused physical harm to the class members.
 The company has a “Help Line”. You instruct one of your paralegals to call the
help line, posing as a potential consumer. The paralegal asks questions about the
possible side effects of the drug in question. Lower level company, just authorized
to answer the help line and not authorized to negotiate the terms of settlement.
Paralegal can call help line.
 Initially, the paralegal speaks to the person who answers the call to the help line.
When that person is unable to answer the questions, the paralegal asks to speak to
the person’s superior. The same conversation ensues. By the end of the
conversation, the paralegal has spoken to the vice president of the company. Safer
to make sure that person is represented by counsel.

 Any problems?

Who is represented person when dealing with an organization?

 Great deal of litigation over this issue

Rule 4.2, Comment 7, provides needed guidance:

Rule prohibits contact with constituent of organization who “supervises, directs or
regularly consults with the organization’s lawyer concerning the matter or has
authority to obligate the organization with respect to the matter or whose act or
omission in connection with the matter may be imputed to the organization for
purposes of civil or criminal liability.”
ABA 2002
See CR 4.2 for definitions of represented persons in an organization.
Former employees of corporation?

Comment 7- Consent of the organization's lawyer is not required for communication

with a former constituent.

What is “knowledge” of representation?

Requires actual knowledge
Knowledge can be inferred from the circumstances
Can’t close eyes to the obvious
Comment 8

Can participants speak to each other?

 Yes…if client is legally entitled to make the communication. (Comment 4)
 But-

 Lawyer may not make a communication prohibited by this Rule through the acts
of another. Comment 4

 See also Hayes v. Commonwealth, 25 S.W.3d 463 (Ky. 2000)(detective who
interviewed indicted defendant without prosecutors’ knowledge cannot be
considered prosecutor’s agent: no breach of anticontact rule)

“Authorized by law” in civil context

ABA Formal Opinion 95-396- authorized by law exception is satisfied by a
“constitutional provision, statute or court rule having the force and effect of law, that
expressly allows a particular communication to occur in the absence of counsel.”

“Authorized by law” in civil context

Lewis V. Bayer A.G., No. 2353 Aug Term 2011, 2002 WL 1472339 (Pa. Comm. Pl. June 12,
2002)(drug company’s mailing to putative members of plaintiff class of patients who
experienced adverse drug reactions were sent pursuant to FDA regulations and were
authorized by law;
See also Parker v. Pepsi-Cola Gen. Bottlers, Inc., 249 F. Supp. 2d 1006(N.D. Il.
2003)(issuance of subpoena does not invoke “authorized by law” exception to Rule
4.2;lawyer who subpoenaed witness whom he knew to have counsel was not
authorized to conduct deposition in counsel's absence).
In re Kunstler, M.R. 19672, 2004PR14(11/17/2004)
In re Sefton, M.R. 19672, 2004PR15 (11/17/2004)

“Authorized by Law” in Criminal Context

May include investigative activities of lawyers representing government entities prior
to commencement of criminal enforcement proceedings.
When communicating with accused in criminal matter government lawyer must
comply with Rule and honor constitutional rights of accused.
Comment 5
“Authorized by Law” in Criminal Context
Some courts have held that communication with represented criminal suspects apart
of noncustodial investigation, before formal proceedings are initiated, does not violate
the anticontact rule. ABA Annotated MR., Seventh edition (2011) (p. 418)

Know Your Jurisdiction!

Rule 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.

A prosecutor’s Masquerade

What is Pre-texting?

Posing as a consumer (8.4) you cant engage in dishonesty.

New York Co. Lawyers Ass’n. Comm. on Pro. Ethics

Op. 745 (July 2, 2013)

Claiming that wife cant have custody of her children because she parties all night.
Lawyer cannot friend wife because that would be deceptive . Alternative is to do a sub
poena.

Using social networking as an investigative tool

 The ethical concerns
 Privacy
 Dishonesty, “Pre-texting”
 Rules 4.2, 4.3
 Avoiding dishonesty
 Supervising employees
Rules 5.1,5.3,8.4(a)

Private investigators getting video or photos of person in public but cannot deceive
or contact person.
Guidance on “Friending”
Facebook – “Friending” a witness on the opposing side

Philadelphia Bar Ass’n Professional Guidance Comm., Op 2009-02 (March, 2009) –

employing a third person to befriend an adversarial witness through an online social
network so as to obtain access to the witness’ personal pages on Facebook and
MySpace constitutes unethical pre-texting.
New York City Bar Association 2010-02-Lawyer may not attempt to gain access to
social networking website under false pretenses, either directly or through an agent

Friending judge judy

Rules
Rule 3.5 (a) and (b): A lawyer shall not seek to influence a judge, juror, prospective juror
or other official by means prohibited by law; a lawyer shall not communicate ex parte
communicate ex parte with such a person during the proceeding unless authorized to do
so by law or court order.
Rule 8.4(f)It is professional misconduct for a lawyer to knowingly assist a judge or
judicial officer in conduct that is a violation of applicable rules of judicial conduct or
other law.
California’s Version of 3.5
Rule 3.5 Contact With Judges, Officials, Employees, and Jurors
(a) Except as permitted by statute, an applicable code of judicial ethics or code of
judicial conduct, or standards governing employees of a tribunal,* a lawyer shall not
directly or indirectly give or lend anything of value to a judge, official, or employee of a
tribunal.* This rule does not prohibit a lawyer from contributing to the campaign fund
of a judge or judicial officer running for election or confirmation pursuant to applicable
law pertaining to such contributions.
(b) Unless permitted to do so by law, an applicable code of judicial ethics or code of
judicial conduct, a rule or ruling of a tribunal,* or a court order, a lawyer shall not
directly or indirectly communicate with or argue to a judge or judicial officer upon the
merits of a contested matter pending before the judge or judicial officer, except: (1) in
open court; (2) with the consent of all other counsel and any unrepresented parties in
the matter; (3) in the presence of all other counsel and any unrepresented parties in the
matter; (4) in writing* with a copy thereof furnished to all other counsel and any
unrepresented parties in the matter; or (5) in ex parte matters.

North Carolina Judicial Discipline

 Judge “friended” a lawyer who represented a party in a domestic matter pending

in his court.
 Communicated with the lawyer while matter was pending:
Judge: “[I am] in my last day of trial.”
Lawyer: “I hope I’m in my last day of trial.”
Judge: “you are in your last date of trial.”
Violation of exparte communication.
 Judge disclosed exchanges to opposing counsel.
 Judge also conducted online research on one of the parties.
Recited poem written by party on her website in open court.
 North Carolina Judicial Discipline
Ex parte communication with counsel

Ex parte online research about a party

Public Reprimand
In re Terry, No. 08-234, Judicial Standards Commission of North Carolina (4/1/09).

Judge's Use of Social Networking Media

-ABA Formal Opinion 462 (Feb. 23, 2013)-

A judge may participate in electronic social networking, but as with all social
relationships and contacts, a judge must comply with relevant provisions of the Code of
Judicial Conduct and avoid any conduct that would undermine the judge’s
independence, integrity, or impartiality, or create an appearance of impropriety.

Note: ABA took pains to point out that

“This opinion does not address other activities such as blogging, participation on
discussion boards or listserves, and interactive gaming.”

ABA Formal Opinion 478

Dec. 8, 2017
SPOLIATION< REVISITED

You can’t ask client to destroy evidence.

Allied Concrete v. Lester,

Record No. 120074 & 120122
(Virginia January 10, 2013)
and
In re Michael B. Murray,
Nos. 11-070-088405, 11-070-088422 (Virginia, July 17, 2013)

Suing the company that owned the truck that killed the wife and husband has a facebook
account. Husband posted photo of “I heart hot moms”. There was a request for photos
on FB and lawyer directed client to take out photo. The ruling is spoliation. He had to
pay $500,000.00(Five year suspension)

Tweeting during oral argument?

Phillip D. “Phill” Kline, former Kansas AG and Johnson County DA is charged with
engaging in lawyer misconduct.

Allegations include his misleading judges and a grand jury and his mishandling of
evidence when he investigated abortion clinics.

He asked the judges to recuse and new judges to decide his misconduct case. Court
Clerk Sarah, tweeting “I predict that he will be disciplined for 7 years”. She lost her job.
She wrote an apology letter and she was censured.

Case Receives Extraordinary Media Attention;

Kline files a motion asking for recusal of certain Supreme Court Justices.

Five Supreme Court Justices recuse themselves from hearing case and are replaced by
two Court of Appeals justices and three District Court judges.
During oral argument in the discipline case, Sarah Peterson Herr, a research attorney
for the Kansas Court of Appeals begins to tweet.
Tweets

Holy balls. There are literally 15 cops here for the Phil [sic] Kline case today. Thus I
actually wore my badge.

You can watch that naughty naughty boy, Mr. Kilein [sic], live! live.kscourts.org/live.
php.

I might be a little too feisty today.

“It’s over…sorry. I did like how the district court judges didn’t speak the entire time.
Thanks for kicking out the SC Phil! Good call!”

“I predict that he will be disbarred for a period not less than 7 years.”

“Why is Phil Klein smiling? There is nothing to smile about, douchebag.”

The Backlash

Kline’s Lawyer:

“I have no interest in insulting any judge or justice in that courthouse who is prepared
to be fair and objective as it relates to Phill Kline…But the bigger question has always
been what kind of atmosphere prevails in the back rooms of the high courts of
Kansas that would make a young lady like that so comfortable to tweet those kinds
of comments in those circumstances.”

The Response
Herr immediately suspended from job;

Herr writes letter of apology-says she did not know tweets would be seen by the public-
at-large;

Herr fired three days after incident;

Herr reports conduct to Kansas Disciplinary Authority;

Kline suspended indefinitely in October 2013;

Former AG is now assistant professor of law at Liberty University in Virginia.

Formal disciplinary charges lodged against Herr in September 2013; In January 2014,
lowest sanction recommended.

What should you post?

Lynn Hartman v. Janssen Pharmaceuticals Inc., Case No. 160503416, Court of Common
Pleas of Philadelphia County, Pennsylvania.
In re Jesse Raymond Gilsdorf
M.R. 26540, 2012PR00006 (Ill.)

The facts:

While representing a client on drug charges, Gilsdorf received written copies of police
reports and a DVD copy of a video of an undercover drug buy, as part of the discovery
tendered by the State’s Attorney. The video, which was 18 minutes and 29 seconds,
was taken by a covert camera and purported to show the delivery of a controlled
substance by the client to a confidential source of the Illinois Drug Task Force.
Less than a month later, attorney uploads the video in two parts to YouTube
“Cops and Task Force Planting Drugs – Part 1”
“Cops and Task Force Planting Drugs – Part 2.”
*Strongly implies Task Force engaged in improper or
illegal conduct by entrapping the client

The Discovery Rules:

Supreme Court Rule 415, on regulation of discovery in criminal cases, provides in
pertinent part:
“Any materials furnished to an attorney pursuant to these rules shall remain in his
exclusive custody and be used only for the purpose of conducting his side of the case,
and shall be subject to such other terms and conditions as the court may provide.”
The Committee Comments to Supreme Court Rule 415, which were published
simultaneously with the rule, included the following:
“While he [the attorney] will undoubtedly have to show it [material received in the
discovery process] to, or at least discuss it with others, he is not permitted to furnish them
with copies or let them take it [the discovery materials] from his office.”

Attorney’s Undoing:
At the same time, Gilsdorf posts a link to the videos
on his Facebook page
Just ONE WEEK later, the State’s Attorney files a motion for sanctions alleging Gilsdorf
violated the discovery rules by disseminating the videos.
The court finds Gilsdorf violated Rule 415(c) and orders him to remove the videos from
the internet.
Between March 4, 2011, when Attorney received the discovery in and May 20, 2011,
when Attorney was ordered by the court to remove the videos, the videos received
more than 2,000 hits on YouTube

Rule 3.6- Trial Publicity

A lawyer shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminate by means of a public communication and would pose
a serious and imminent threat to the fairness of an adjudicative proceeding in the matter.

CR 3.6 similar

Rule 3.8

Prosecutor in a criminal case shall:

(a) Refrain from prosecuting a charge that the prosecutor knows is not supported
by probable cause
(b) Make reasonable efforts to assure that the accused has been advised of the right
to, and the procedure for obtaining, counsel and has been given reasonable
opportunity to obtain counsel:
(c)not seek to obtain from an unrepresented accused a waiver of important pretrial
rights, such as the right to a preliminary hearing.

Rule 3.8 Special Responsibilities of a Prosecutor

A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligation to see that the defendant
is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence
and that special precautions are taken to prevent an to rectify the conviction of innocent
persons.

MR Com 1
The duty of a prosecutor is to seek justice, not merely convict. (Il Rule 3.8)
Rule 3.8 is intended to remind prosecutors that the touchstone of ethical conduct is
the duty to act fairly, honestly and honorably. Com [1A] (Il)
Rule 3.8 should be read in conjunction with other applicable rules providing
guidance for specific situations, 3.3, 3.4, 3.5 and 3.6 (Com 1[A] Il.

Disciplinary Proceedings against Kenneth Kratz,

2014 WI 31 (Wisconsin June 6, 2014)
.
"Are you the kind of girl that likes secret contact with an older married elected DA ...
the riskier the better?"

"I'm serious! I'm the atty. I have the $350,000 house. I have the 6-figure career. You may
be the tall, young, hot nymph, but I am the prize!"

Cyber-Blitzing
Cyber-Blitzing is Becoming a Big Problem;

Blitzing Involves Lawyer Who Misuses Social Media, Often Under the Guise of First
Amendment Protected Speech, in an Attempt to Gain Advantage in Litigation;

Blitzing Often Involves Suggestion that People Contact Case’s Presiding Judge;

Blitzing Typically Justified by Perceived Social Injustice, e.g., Sexual Abuse of Minors,
Elder Abuse.
NOBC Current Developments Trend August 2015

Example of Cyber-Blitzing
In re Joyce Nanine McCool
No. 2015-B-0284 (Louisiana June 30, 2015)
A New Age of Civility?
Playing Nice
Rule 4.4 “In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use methods of
obtaining evidence that violates the legal rights of such a person.”
Rule 8.4(d) “It is professional misconduct for a lawyer to engage in conduct that is
prejudicial to the administration of justice.”

ELLM: Cross Border Practices, Model

Rule 5.5, Associations of Lawyers

 UPL=Unauthorized or Unlawful Practice of Law

 Regulated jurisdiction by jurisdiction by:

legislation,
court rules,
statutes (civil and criminal), and
court opinions regarding UPL

 Prohibition against the practice of law by persons with no license at all or lawyers
licensed in other states.

Non-lawyers Cannot Generally Practice Law

Violates criminal statutes

Lawyers cannot assist non-lawyers in the unauthorized practice (5.5)

Lawyers cannot form partnerships with non-lawyers if involves practice of law (5.4)

Lawyers cannot share legal fees with non-lawyers (1.5)

Ex. Notary Public

 Civil vs. Common law countries

 In civil law countries Notaries represent a separate branch of the legal

professions

 In common law countries a notary has limited powers, such as administration

of oaths to person who sign sworn documents

 Huge problem with UPL by “Notarials” in the United States due to

misunderstanding of foreign nationals of their role in the legal system here
 Multijurisdictional Practice of Law- MJP

Legal work by a lawyer in more than one jurisdiction, including a jurisdiction where
not admitted to practice law

Why do you care?

Modern times…

United States’ Historical Context

State regulation of practice of law arises out of concept that states have interest in
protecting its residents and justice system and establish requirements that its lawyers
have requisite competence and fitness to practice law
In late nineties, traditional lawyer regulation practices came under particular scrutiny
in part based on two cases:
Birbrower , 949 P. 2 (1998) (Ca case) (Lawyer not licensed in Ca. but in NY,
violated Ca’s misdemeanor UPL provision when assisted Ca. corporation in
arbitration under Ca. law and were barred from recovering fees under fee
agreement for legal services for work done while physically or virtually present
in Ca.
Parsons, 179 F. 3d 956 (1999)(Selling of software forms for legal documents by Ca.
corp in Tex was UPL because aided nonlawyers in practice law even though there
were disclaimers.)

MR Rule 5.5 UPL; MJP

5.5(a) Lawyer shall not practice law in jurisdiction in violation of the regulation of the
legal profession in that jurisdiction or assist another in doing so
California Rule 5.5
Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law
(a) A lawyer admitted to practice law in California shall not:
(1) practice law in a jurisdiction where to do so would be in violation of
regulations of the profession in that jurisdiction; or
(2) knowingly* assist a person* in the unauthorized practice of law in that jurisdiction.
(b) A lawyer who is not admitted to practice law in California shall not:
(1) except as authorized by these rules or other law, establish or maintain a resident
office or other systematic or continuous presence in California for the practice of law;
or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice
law in California.
 MR 5.5(c)- Safe harbors
A lawyer admitted in another US jurisdiction and not disbarred or suspended from
practice in any jurisdiction may provide legal services on a temporary basis in this
jurisdiction that:

(1) are undertaken in association with a lawyer admitted to practice in this

jurisdiction and who actively participates in the matter; (The Local counsel
provision);

(2) are in or reasonably related to a pending or potential proceeding before a

tribunal in this or another jurisdiction if the lawyer, or a person the lawyer is
assisting is authorized by law or order to appear in such proceeding or
reasonably expects to be so authorized; (The pro hac vice provision; for this occasion)
MR 5.5(c)- Safe harbors
A lawyer admitted in another US jurisdiction and not disbarred or suspended
from practice in any jurisdiction may provide legal services on a temporary basis
in this jurisdiction that:

(3)are in or reasonably related to a pending or potential arbitration,

mediation or other alternative dispute resolution proceeding in this or
another jurisdiction, if the services arise out of or are reasonably related to
the lawyer’s practice in a jurisdiction in which the lawyer is admitted
practice and are not services for which the forum requires pro hac vice
admission; (The ADR provision)
(4) are not within paragraphs c(2) or c(3) and arise out of or are reasonably
related to the lawyer’s practice in a jurisdiction in which the lawyer is
admitted to practice. (The transactional lawyer provision)

MR 5.5(d)-The in-house counsel provision

(d) A lawyer admitted in another US jurisdiction or in a foreign jurisdiction, and not
disbarred or suspended from practice in any jurisdiction or the equivalent thereof,
may provide legal services through an office or other systematic and continuous
presence in this jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates; are not
services for which the forum requires pro hac vice admission; and when
performed by a foreign lawyer and requires advice on the law of this or another
jurisdiction or of the United States, such advice shall be based upon the advice of
a lawyer who is duly licensed and authorized by the jurisdiction to provide such
advice; or
(2) are services that the lawyer is authorized by federal law or other law or rule to
provide in this jurisdiction
MR 5.5(e) the foreign lawyer provision

5.5(e) For purposes of paragraph (d), the foreign lawyer must be a member in good
standing of a recognized legal profession in a foreign jurisdiction, the members of
which are admitted to practice as lawyers or counselors at law or the equivalent, and
are subject to effective regulation and discipline by a duly constituted professional
body or public authority
MR 5.5(b) -No systematic or continuous presence
MR 5.5 (b)
A lawyer who is not admitted to practice in this jurisdiction shall not
(1) except as authorized by these Rules or other law, establish a systematic and
continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to
practice in this jurisdiction

Examples
Lawyer A in-house counsel. Advices N.Y. corporation on credit issues for their
nationwide operation. Ca, Nev, Il, Mich., Tex. If she travels to those states to give
legal advice, is it unauthorized practice of law?No, because of client.
Lawyer B licensed in Fla. Works for DEF corp. Responsible for developing European
and Asian properties as resorts. He engages in overseas negotiations of land
acquisitions, building construction, joint ventures with local entities that manage
resort properties and none of his work involves interpretation of US law. Lawyer
moves from Fla to NY. Should he have to take bar exam? Inhouse rule only if only
doing DEF corp but if systematic, get bar.
Lawyer C. Licensed in NY. In-house counsel. Travels to Michigan to attend meeting
at office of one of its corporations divisions and advises managers in compliance with
Michigan state law and federal environmental regulations. UPL? No. Are you
competent to advise manager in compliance in Michigan state law??!!
Lawyer licensed to practice in New York and he comes every winter to Florida.
Systematic and continuous presence in a state. Florida for the purposes of New York
Law.

A client regularly negotiating in another state- should be temporary or could

associate, or transactional part of the exception, related to home jurisdiction but more
jurisdictions are more strict than others.

Rule 8.5 Disciplinary Authority: Choice of law

8.5(a)Disciplinary Authority
Subject to disciplinary authority of jurisdiction where you are licensed.
Subject to disciplinary authority of jurisdiction if provide legal services in this
jurisdiction.
May be subject to disciplinary authority of more than one jurisdiction for the same
conduct

8.5(b)Choice of law
Generally speaking if matter before tribunal-subject to rules that jurisdiction
unless rules of tribunal provide otherwise
For other conduct-jurisdiction in which conduct occurred unless predominant
effect of conduct in another jurisdiction
Ethical Issues and Supervision

What are the Model Rules?

Series 5- Law Firms and Associations

Rule 5.1: Responsibilities of Partners, Managers and Supervisory Lawyers

Rule 5.2 : Responsibilities of a Subordinate Lawyer

Rule 5.3: Responsibilities Regarding Nonlawyer Assistants

Rule 5.1 for Supervisory Lawyers
“A lawyer who possesses managerial authority in a law firm, shall make reasonable
efforts to ensure the firm has in effect measures giving reasonable assurance that all
lawyers conform conduct to RPC.”
Rule 5.1-When is Supervisor Responsible for Subordinates Violations?
If:

Lawyer orders or ratifies the conduct involved

Lawyer knows of conduct when could be stopped or mitigated and fails to take
reasonable remedial measures.
Rule 5.2 -Subordinates
Following orders is no excuse
Rule 5.3 Nonlawyer Assistants
Each partner or supervisor shall ensure that the firm ahs in effect measures assuring
the nonlawyer’s conduct conforms to the lawyer’s professional obligations.

Rule 5.3-When is a Lawyer Responsible for Nonlawyer’s Violations?

If:

Lawyer orders or ratifies the conduct involved

Lawyer knows of conduct when could be stopped or mitigated and fails to take
reasonable remedial measures.

Supervision and Realities of alternative legal service providers to corporate clients

During the last 5 years various innovative legal services models have been established
MDP firm (Clearspire); VLP (Virtual Law Partners); Axiom Law (insourcing and
outsourcing); Vista Law (global network of lawfirms)
Based on concept of unbundling of legal services
Issue of training and supervision of lawyers and nonlawyers does not change
Different business model but same ethical issues
Does client control or does legal service model?
Duty To Report
Professional Misconduct
That enforced that often
Lawyers Shall Report to appropriate professional authority
knowledge not otherwise protected as confidence (or gained while Lawyer
participating in LAP program) where another lawyer has:
Committed a violation of the RPC that raises a substantial question as to L’s honesty,
trustworthiness or fitness as a lawyer in other respects
What is knowledge
Objective standard
Would reasonable lawyer in circumstances have opinion that conduct more likely not
occurred
More than “mere suspicion less than absolutely certainty” (Il. Skolnick v. Althemier
and Gray)

Failure to Report
Under Rule can result in lawyer being subject to discipline

In reality, relatively few cases where lawyer subject to discipline for not reporting

However, possibility exists

Most states do require Report
of serious misconduct that is not confidential

Georgia- Permissive reporting, failure to report not result in discipline

Washington state-lawyers not required to report misconduct of other lawyers or
judges

 Advertising, Solicitation, Etc.

o Legal ethics

 A brief overview of lawyer advertising

 o What you can see on You Tube
o http://www.youtube.com/watch?v=YPre9A50gbo
o The Best or Worst Lawyer Commercial Ever
o http://www.slate.com/blogs/the_slatest/2014/03/06/daniel_muessig_video_t
his_is_either_the_best_or_worst_lawyer_commerical.html
o More You Tube
o http://www.youtube.com/watch?v=ZG6PjrdvX8s

 RPC 7.1
Communications Concerning Lawyer’s Services
 Can’t be false
 Can’t be misleading
 Can’t contain material misrepresentation
 Truthful statements can also be misleading if omit facts necessary to make statement as a
whole not misleading
 RPC 7.2 Advertising

 Subject to 7.1 and 7.3 may advertise through written, recorded or electronic
communication, including public media
 Advertising through electronic media is also governed by the Rules. See Rule 7.2
Comment 3
 Can’t give anything of value to person for recommending lawyers’ services
 Advertisements must have name of at least one lawyer responsible for content
 Advertising in Other Countries
Common Themes
 “Dignity”

 Not defamatory

 No client identification

 Factually correct


 In the Matter of Svitlana E. Sangary

 (California)

 In re Edward R. Reines, 14-MA004(14-4)

 (Fed. Cir. Nov. 5, 2014)
 RPC 7.3
Direct Contact with Prospective Clients
 When motive is financial, can’t solicit through in-person, phone or real-time
electronic contact unless it is family, another lawyer or prior professional relationship
 Even if contact is not prohibited by Rule lawyer, can’t contact directly if knows person
does not want to be contacted of if contact involves coercion, duress or harassment
 Why?

 Your thoughts?
Hypothetical 1
 Tweetum, Login and Blog (TLB) is an Illinois law firm that decided to use some new
marketing techniques. TLB wanted to develop their estate practice. They used Groupon
to offer a will and power of attorney for $99. Groupon gets paid a percentage of the
amount earned by the advertiser.

 Concerns?
 Groupon
 Indiana State Bar, Legal Ethics Com Opinion 1, 2012
 New York State, Committee Professional Ethics No. 897, 12/ 13/11

 Use of third party company that brokers discounted services to online customers
 Rule 5.4 concerns
 False or misleading?
 Forming attorney-client relationship before lawyer has checked for conflicts or
determined he or she is competent?
 Your thoughts?
Hypothetical 2
 TLB has a website. The website reads as follows:
 TLB has over 100 years of experience specializing in divorce, and estate planning. Five
of the fifteen lawyers at our firm are superlawyers. Our initial consultations are free.
Our fees for divorces are $1,000 and our clients include:
 Derrin Derose
 Liz Tailor
 Warren Wuffet

o Concerns?

 Super Duper Lawyers

 Best practices
 No false or misleading advertising
 Ask: Is publication independent?
 Ask: Is rating conditioned upon buying something?
 Can consumer easily locate the standards for the selection of the attorneys?
 Include year(s) listed in ads
 Hypothetical 3
 You decide to advertise your legal services on Facebook. In order to draw more potential
clients to your Facebook page, you decide to run a promotion. You will enter anyone
who “likes” your Facebook page into a drawing for a free I-Pad.

 Concerns?
 Hypothetical 4
 You have a former client who was very happy with your exceptional legal services. You
ask the former client to go on Linked In and endorse your services, like your Facebook
page and tell all his friends about you.

 The former client agrees and offers to send you new business if you will give the former
client $25 for each new client he brings to you.
 Concerns?
 Hypothetical 5
 What if the former client is a business consultant and you practice business law. Can you
form a partnership with the former client to offer “comprehensive services” to clients?
 Professional Obligations
 M.R. 6.1 and 6.2
Voluntary Pro Bono and Accepting Appointments
 Rules more aspirational than for disciplinary purposes
 Vary state to state
 6.1 says every lawyer has professional responsibility to provide legal services to those
unable to pay (50 hours)

 6.2 shall not seek to avoid court appointments except if representation likely to violate
Rules, cause unreasonable financial harm or cause is repugnant to lawyer so lawyer
can’t adequately represent client