Ch. 6) PARTICULAR LAWYER ROLES AND RESPONSIBILITIES • ADVOCATE Problem pp. 412-3: Frivolous Claims (a,b) Does either plaintiff or defendant have a duty to investigate before filing petition or answer? (1) under disciplinary law (MRPC 3.1)? (2) under procedural law (FRCP 11)? Giangrasso, p. 414 (3) is a defendant’s denial different from a plaintiff’s allegation? What about a criminal defendant’s plea of not guilty? (4) was Lincoln’s investigation adequate under these standards? What should he have done?
Problem pp. 412-4 c’t’d • What remedies are available to the party against whom a frivolous claim is filed? (1) within the proceeding (Giangrasso) (A) costs of defending? (B) attorneys’ fees? (C) non-monetary relief (injunction against further suit?) (2) separate civil action for damages – what elements? Prewitt v. Sexton, p. 422
Further issues re frivolous claims • Is there a continuing duty to update papers and positions as further evidence comes in? FRCP 11(b) • Does the court have discretion not to order sanctions, once a violation of Rule 11 has been found? FRCP 11(c) (cf. previous version!) • what about “threatening criminal prosecution”? What is at issue?
Pretrial delay and discovery abuse: Problem pp. 426-8 • Does Fisons or its lawyers have a duty to disclose the “smoking gun” documents, absent a discovery request? FRCP 26(a)! (b) (i) Was the Fisons’ law firm’s response to Ps’ request appropriate? N. 1 pp. 428-9 (A) was the objection valid? (B) was the production consistent with the offer? (ii) if a discovery request is made, can the lawyer for the requested party simply rely on their client to find responsive material? FRCP 26(g), and nn. 2, 3 pp. 429-30 (A) “reasonable inquiry”? (B) “reasonable effort to assure that client has provided all the information available to it responsive to demand”?
Problem pp. 426-8 c’t’d (b, c) who should be sanctioned if a particular response is insufficient? (A) the signer (FRPC 26(g)(3)) (B) the party? Id. (C) in-house counsel who doesn’t sign? • Can the client turn over the “smoking gun” to firm, but forbid disclosing it? How should firm respond? • what are court’s powers re excessive requests? FRCP 26(b)(2), 26(c) • after Rayle’s conduct at deposition, what happens next?