Professional Responsibility

Week 12

• Handout #1: Doalog on the rules of professional conduct; not on the exam, but interesting info about changes in the rules.
• Exam location will be disclosed in e-mail
• No trick questions; possibly no C's
• Review: must be sure that claims are meritorious. 8.4 comes up a lot. Doubts about truthfulness should be resolved in favor of the client (coaching of a witness is allowed, to make the witness more cogent, etc., but not to change the testimony, of course, coaching does change it,,,). Laws have to be disclosed, but facts possibly not. You can make political contributions but not for the purpose of obtaining a position.
• Rule 3.4: fairness to opposing counsel. False testimony is ¶ b. Half-truths (or evasion) are not usually a basis for discipline.
• Discovery abuse is bad. If you suspect the other side is witholding, you try subpoena, or motion to compel. (vs. motion for protective order).
• Part (E): you shouldn't ask a damaging question without some basis.
• Part (F): you may be able to tell someone not to talk to the other side if they're a client (or relative or agent thereof), AND you believe they wouldn't be harmed by not talking.
• 3.5: no talking to jurors, or judges ex parte
• 3.6: Trial publicity
• 3.7: Lawyer as witness-- basically you can be a witness or an advocate, but not both. Don't interview witnesses, etc., alone: then the other person can testify, not you.
• 3.9: non-adjudicative proceedings
• 3.8: obligations of prosecutor.
• Note that prosecutors don't currently have official permission to be deceptive; just to supervise "lawful" investigative activities. But that isn't defined.
• 2.1: counselor: be candid and independent
• 2.3: evaluation for use by third persone
• 2.4: sometimes you'll be an arbitrator
• 4.1: this is the part permitting lawful investigative stuffs (B). This is sort of a license to lie (comment 2).
• Note the difference between the Yoko Ono case and Gatti: maybe in the Ono one, the court was just mad because their order was being violated.
• Know ABA version of 1.15; no questions on 21 or 22