Litigation Ethics

1. Litigation Ethics The Adversary System

2. Fuller & Randall • “The institution of advocacy is not a concession to the frailties of human nature but an expression of human insight in the design of a social framework…” • The advocate “plays his role badly … when his desire to win leads him to muddy the headwaters of decision.”

3. Frankel • We don’t know how well the adversary system works because we haven’t tried any other form. • “The business of the advocate … is to win if possible without violating the law.” • Truth is not the end goal.

4. Simon • “the virtues of the adversary system depend on shared party control over the presentation of evidence to the trier.” • “The lawyer seeks to benefit the client by inducing trust and reliance in others.” (emphasis added).

5. Trial Conduct Sanctions for Improper Advocacy

6. Overzealous Advocacy: Lee v. American Eagle Airlines • “Let’s Kick Some Ass!” • Court’s ruling • Discussion of issues: • Inherent power/Contempt • Vexatious multiplication of proceedings • Duty of respect • Other prohibited tactics

7. Lack of Candor: Jorgenson v. County of Volusia • “I didn’t lie, I just didn’t tell the truth!” • Discussion of issues: • Duty to client vs. duty of candor--what if the law just isn’t on your side? • Failure to cite adverse authority--the “Oops, I forgot to mention that” defense • MR 3.3(a)(1) • (in)Judicious use of the ellipse (misquoting law) • Just plain wrong: plagiarism, concealing the facts • The significance of ex parte proceedings: no fact-checking • What about outside of court? (e.g. “sting” operations)

8. Extrajudicial Statements: Iowa Supreme Court Board of Professional Ethics v. Visser • Issue: “What do you when a reporter you asks for a quote” • The Gentile case: will your statement affect the fairness of the trial? • Misleading statements • Prosecutors • What about former counsel? • Slamming the judge

9. The Advocate-Witness Rule: In the Matter of Estate of Waters • Facts: “Fighting over the will” • The Rule • Can it be waived? • Can it be bent? • Can lawyer’s serve as expert witnesses?

10. Model Rule 3.3 • ADVOCATERULE 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.

11. Georgia Rule 3.3 • (a) A lawyer shall not knowingly: • (1) make a false statement of material fact or law to a tribunal; • (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; • (3) 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 • (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. • (b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. • (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. • (d) In an ex parte proceeding, other than grand jury proceedings, a lawyer shall inform the tribunal of all material facts known to the lawyer that the lawyer reasonably believes are necessary to enable the tribunal to make an informed decision, whether or not the facts are adverse. • The maximum penalty for a violation of this Rule is disbarment.

12. Client Perjury: People v. DePallo. (N.Y. 2001) p. 434 Just enough rope to hang himself. • Facts: Lawyer informs judge of clients perjurious testimony after trying to dissuade and withdrawal not a viable option. • Action: 6th Amd. Claim of ineffective assistance of counsel. “defendant contends that his counsel should have sought to withdraw from the case…” • Nix v. Whiteside. (U.S.1986). “For defense counsel to take steps to persuade a criminal defendant to testify truthfully, or to withdraw, deprives the defendant of neither his right to counsel nor the right to testify truthfully … In short, the responsibility of an ethical lawyer, as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. No system of justice worthy of the name can tolerate a lesser standard.” • Court: “We agree … that withdrawal of counsel could present other unsatisfactory scenarios which ulitmately could lead to introduction of the perjured testimony in any event or further delay the proceedings … the lawyer’s actions properly balance the duties he owed.”

13. Model Rule 3.4 • 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.

14. Model Rule 3.4 • Comment 2 • … Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.

15. Georgia Rule 3.4 • 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)     • (1) falsify evidence; • (2) counsel or assist a witness to testify falsely; • (3) pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: • (i) expenses reasonably incurred by a witness in preparation, attending or testifying; • (ii) reasonable compensation to a witness for the loss of time in preparing, attending or testifying; • (iii) a reasonable fee for the professional services of an expert witness; • (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; or • (2) the information is subject to the assertion of a privilege by the client; and • (3) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information and the request is not otherwise prohibited by law; • (g) use methods of obtaining evidence that violate the legal rights of the opposing party or counsel; or • (h) present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter.

16. Handling Tangible Evidence: Morrell v. State (Ak. 1978). p. 448 “Ixnay on the lanpay.” • Facts: Defense attorney helps client’s roommate hand over “the kidnapping plan” to police. • Action: Ineffective assistance of counsel. Lawyer “had no affirmative duty to come forward with the evidence nor to assist [the roommate] in carrying out his decision to turn the evidence over to the police.” Therefore the evidence should have been suppressed. • Law: Ak Advisory Opinion. Return the evidence to the 3rd party, explain the law, withdraw from the case (if necessary) AND do not reveal existence of it “unless required to do so by statute.” • Ak. Stat. 11.30.315: “A person who wilfully … conceals evidence concerning the … crime … is guilty of a misdemeaner.” • State v. Olwell. (Wash. 1964). Attorney may hold incriminating object for reasonable time to prepare defense, must not reveal source. Protected by Atty/client priv. • People v. Lee. (Cal. Ct. App. 1970). Wife turns over the “bloody shoes” not protected by atty/client priv. still have to turn it over. • Court: Attorney had reasonable belief that he was precluded from concealing evidence under Ak. Stat.

17. Counseling about Dispute Resolution • You’ve got options, Baby! “When a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.” –MR 2.1, comment [5] “A lawyer has a duty to inform the client of forms of dispute resolution which might constitute reasonable alternatives to litigation.” –Ga. Rule 3-107. EC 7-5

18. Alternative Dispute Resolution (ADR) • More than one means to the end • Three main forms of ADR: • negotiation • Most common form of ADR • Mediation • A neutral 3rd party/mediator helps the parties reach an agreement • Arbitration • A neutral 3rd party/panel gives the parties a binding decision • Usually faster than a trial • Disadvantages: when litigation is better • Your goal is to set a legal president • You have a strong legal case • If a legal error occurs during arbitration, you’re still stuck with the result.—Federal Arbitration Act • Exception: manifest disregard • Not everyone is as smart as you are—you still have to convince the other side that ADR is the best option.

19. Counseling about Settlement • Talk about it early • Keep them updated and informed throughout the process • Keep the client’s expectations reasonable. Don’t make promises you can’t keep! • 9 out of 10 civil cases end in negotiated settlement • Restatement § 22: • A lawyer can start settlement negotiations • You can’t seal the deal without you’re client’s authorization • i.e. Client gives you settlement authority and a $$$ range • If a 3rd party settles with a reasonable belief that you DO have the authority (and you don’t), then your client could sue you for breach of fiduciary duty, legal malpractice—and you’ll probably get sanctioned too.

20. Ethics of Negotiation

21. Duty owed to Adversaries: KY Bar Assn. V. Geisler, p.460 • “If you wanted to know if my client was dead, all you had to do was ask.” • Facts: Prior to entering into and consummating settlement negotiations, an attorney failed to mention to opposing council that her client had died. • Issue: What does the Other Side really need to know?

22. KENTUCKY V. GEISLER (cont.) • Duty to inform the Court and adversary of client’s death first communication after the fact (ABA) • Continuing authority to act • Problem: client’s death you no longer represent the “previously identified client” • Failure to disclose the death of a client is “tantamount” to making a false statement of material fact.—MR 4.1(a) • Virzi: Δ’s attorney never thought to ask if Π was still alive, so the other attorney never had to make a false statement. Still, court found that failure to disclose was equivalent to a mispresentation. • Misrepresentation includes failing to act. • Candor and honest require disclosure.

23. Secret Settlements • Generally, settlement secrets are allowed.—ABA Section of Litigation, Ethical Guidelines for Settlement Negotiations, Guideline 4.2.6 at 47 • Limitations: • “Sunshine” laws • Public hazards • Opposing council misconduct

24. Model (and Georgia) Rule 1.8(e) • e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: • (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and • (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. • Comment 4: [4] Paragraph (e) eliminates the former requirement that the client remain ultimately liable for financial assistance provided by the lawyer. It further limits permitted assistance to court costs and expenses directly related to litigation. Accordingly, permitted expenses would include expenses of investigation, medical diagnostic work connected with the matter under litigation and treatment necessary for the diagnosis, and the costs of obtaining and presenting evidence. Permitted expenses would not include living expenses or medical expenses other than those listed above.

25. Advancing Litigation Costs: OK Bar Assn. v. Smolen. (Ok. 2000). p. 477 “Loan Shark.” • Facts: Attorney loans W/C client money for living expenses, claims it doesn’t violate the intent of the rule. • Action: Disciplinary action against attorney. • Law: Rule 1.8(e). • Court: Attorney's method of granting loans only after the relationship was established, to be repaid from funds already awarded, and for humanitarian purposes is not enough to overcome the concerns of “champerty” and “maintenance.” • “we … decline to make the ad hoc exception to rule 1.8(e) … he is suspended from the practice of law for sixty days.”