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Ethics for Litigators

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Ethics for Litigators

The Rules of Professional Conduct contain special rules regarding the duties, obligations, and restrictions applicable to attorneys engaged in litigation, which also includes administrative proceedings. The course will provide an overview of the fundamental ethical rules, and their relationship to substantive rules and law, that litigators encounter. The course will include discussion of the rules that ever litigator needs to fully know and understand in order that they can properly represent their clients in dispute proceedings. Since a violation of the rules can result in significant harm to the client’s case, attorneys should stay fully informed about the pertinent rules. Although the course is basically an ethics course, ideas on how to better represent a client in litigation and comply with the rules will be discussed.


John Snow
Parsons Behle & Latimer


John Snow: Hello, my name is John Snow and I'm an attorney in Salt Lake city, Utah. I also am licensed in Nevada and I'm with a firm that conveniently has offices in Utah, Nevada, Idaho, and Montana. The firm name is Parsons Behle & Latime. And one of the things that I do for a living is I represent lawyers in connection with malpractice claims. I also represent lawyers in connection with administrative claims where they're being sanctioned for violations of a rule. And I happen to be chair of The Ethics Advisory Opinion Committee in Utah. So I have some practical as well as theoretical knowledge of the rules of professional conduct. So I hope I can provide some insight that will be positive for you and discussing some of the ethical issues that litigators encounter. There are a lot of general rules that apply to litigators, obviously like the obligations of confidentiality and conflicts and things of that nature.

   But there's a specific section of the rules of professional conduct in this article three, that deals specifically with litigators. Now I'm going to touch on a couple of the generalized rules, and then we'll talk more specifically about the rules that are applicable to just litigation matters or other type of adjudicative proceedings. The other thing that I wanted to mention is that you can't talk about ethics without also talking about substantive law on procedure. And as a result, not only will we be talking directly about ethics, but the application of ethics to a specific rules, substantive rules, and practices that lawyers do engage in.

   The first rule that I want to bring to your attention is competence and meritorious claims. Now competence is a general rule contained in 1.1, and it provides simply that a lawyer shall provide competent representation to a client. And it's defined to include the legal knowledge, skill, thoroughness, and preparation, reasonably necessary for the representation. One of the issues that we have as lawyers is sometimes we get overworked and we really aren't prepared to do certain things. For example, instead of attending a deposition, you decide to write a brief and you send an associate to the deposition. Well, in most instances, that is not going to be an issue, but when you send somebody to a deposition on your behalf, you need to make sure they're competent to handle the matter that they know the issues, that they'll make appropriate objections, as limited as they may be during a deposition. And that they know where the issues are going so that they can cross examine a witness in order to preserve or obtain information regarding a defense or claim in the litigation.

   I think it's one of the things that lawyers do commonly is they get busy and they assign something to someone else without worrying about whether that other lawyer is really up to speed sufficiently to provide competent representation. Another issue with competent representation is we're required to have average skill, that rule requires average skill knowledge for the lawyer. When you delve into a new area of law, sometimes you spend time reading into it just to get up to speed. For example, if you've never handled a trust and estates matter, and you really don't even know how it works and you haven't had trust and estates since law school, and it's now 25 years later, you may be spending time trying to get up to speed. Question yourself on whether or not you should be billing your time for that ethically because you have an obligation of certain minimum obligation of competence. And if you're spending time for a client to get that level of competence that is expected or anticipated, then perhaps it's not a reasonable fee under Rule 1.5, which provides that all fees shall be reasonable.

   And case law talks about the fact that if you're doing clerical work or something that does not really require legal skill or reading into a subject that you know nothing about it may not be considered something that would be deemed reasonable under the ethics Rule 1.5. One of the other areas that has come into more question in the last decade, and it's obviously not new, it's been around for quite a while, but it's now just getting to where we're getting opinions on it that are meaningful and case law that is meaningful. And that is the social media electronic processes that go with competency.

   I tried a case and this was just when... not wasn't just when PowerPoint was getting popular, but it was still in the early stages. And we were using a PowerPoint presentation and the other side was using charts. And some of their charts overlapped ours. And the person I was trying the case with actually said this in front of the... Well, I don't know if it was a bad practice or bad tactic or not, but said, "Would you like to use our PowerPoint?" And he said, "No, I'm just a country lawyer." And he didn't sit quite like that. I prefer to use the old fashioned way. Well, 10 years ago that would work, but in today's world, technology is what is anticipated by jurors in the views of pundits in this area. And so making the presentation electronically and having the skill to do it electronically is a minimum level of competence that is required.

   And not only is there issues with respect to knowing the rules or knowing the procedures for use of electronic information, it also goes into knowing how to do discovery regarding electronic information. One of the examples is the use of metadata and metadata is just information about information related to the creation of the document. And when you ask for production of document, you get a PDF version of the document so that you cannot see the metadata. But you should ask for the Word version or whatever the process is that it's used to create the document, which will have information about when the document was prepared, how it was prepared, changes, dates, time, and other information that can be critical to actually determining when a document was created by whom and other relevant information.

   If you don't know what metadata is, you don't know how to ask for it and it could be significant. A simple, very simple example is you have a document that is dated October 15th, and that is a critical date. And the witness testifies that that's the date the document was prepared and not before. If you get to the metadata, you can find that the document was prepared before that date or after that date, depending on what best suits your case or doesn't, but you can at least find out when the documents was first created, not withstanding the fact that it has a date on it. So metadata is also something you need to know and be competent in.

   And that goes with the next topic, which is duty of competence in developing a claim, and that requires not only knowing the technology that is necessary for developing a claim and how to get, for example, the hard drive, of course there's experts in this area, but how to get it and have it examined and determine whether or not there's deletions modifications to the information that has been stored. But that is always going to be done by experts, unless you're a very talented lawyer. And getting in the experts hands, and then having the expert do the search that is necessary is where you're going to get the information. The experts in this area that have had experience doing this can lead you to the information you need, give them an open directive and find anything you can basically, I'm not saying that's the instructions, but giving them broad instructions so that they can do a thorough examination.

   It's not that expensive anymore to do a lot of these searches like it used to be, and you can find out what documents have been destroyed or deleted from the system when, how, by whom, but you have to know the technology to get it and then you have to use it to develop your case. All part of the duty of competency. Connected with the duty of competency is also one of diligence and frequently the two terms overlap. Competency actually deals more with substantive matters, diligence is more procedural matters. For example, the failure to answer a request for admission in a timely fashion, is that a competency matter or is it a diligence matter? Well, generally it's a diligence matter because you didn't properly have it. You didn't respond to it, have it calendared and didn't properly respond to it. So it's a diligence issue.

   But diligence goes hand in glove with competence. And one of the things is for example, timely interviewing witnesses, preserving testimony, and other matters that although you can say, I can talk to that witness later at another time, sometimes speaking to a witness earlier, when you should leads you to a couple of advantages. One, you'll know if you need to depose that person for purposes of getting the information or not, as opposed to just simply interviewing them and delivering them to the trial by subpoena. It also can tell you whether or not you are going down the right track theoretically with your claim or not. The other thing is that witnesses remember more after the first meeting, almost inevitably, if something is more than a year old, the witness is not going to have a fresh recollection. So I plan on significant witnesses. I plan on meeting a couple of times with them because the first time they remember things generally, the next time they remember things much more specifically, and they may actually remember things differently when you speak with them for the second time.

   An example of that for me was in a legal malpractice case. The opposing party had signed an affidavit that said certain bad facts that related to the client that I was representing. What had happened in that case is the lawyer tried the case and they got hit with a excess verdict. The lawyer had recommended settlement several times to the carrier. The carrier had refused to accept those settlement offers. Then they go to trial and then they get hit. The adjusters blamed the lawyer, what a surprise, and then sued the lawyer in malpractice. The other lawyer had signed an affidavit at the request of one of the third parties who got the excess claim to indicate this certain facts had not occurred.

   And so this lawyer was an important lawyer. I met with him the first time his statement was, I remember nothing. I showed him the affidavit. Well, I'm thinking, he says, I think the affidavit is correct. Well, it doesn't line up with any of the facts that exist. It's not correct. I don't tell him that, but it's not correct. I know that. So I go back a third and fourth time to him. I eventually get him to say, you know what? That isn't right. That is not my recollection. And when he testified at trial, the other side hadn't given him the night before prep and did not know his testimony had changed from his affidavit, but he gets on the stand. The other side calls him and he testifies 180 degrees differently than what was in his affidavit. And then the lawyer starts talking to him about perjury and impropriety of changing your testimony.

   And what was really great about it is he said, well, what happened is you drafted this affidavit for me? And I read it, and it looked generally correct. Now when I look at it and see what you wrote, I think it's wrong. And we did win the case, not because of that affidavit. But nonetheless being diligent in pursuing witnesses and documents assists in developing the claim. So the obligation of diligence not only relates to being competent, but pursuing things to a conclusion. Also, being diligent will reduce your own anxiety as well as that of your client. How your client knowing that you are working on a matter diligently is going to reduce the anxiety of the client, which is a good thing. Regular communication with the client about what you're doing is a good thing. And is in fact, one of our obligations under rule 1.4 of the rules of professional conduct.

   Let me say this before I go much further. Normally I state this in my introduction. And that is every state in the United States has... every state has adopted the rules of professional conduct based on the model rules, promulgated by the ABA. The model rules are copyrighted. And if you cite the model rules, they'll send you a letter saying, these are copyrighted and you're violating the copyright if you cite to them. But state rules and laws are not copyrighted and you can cite to those. And so in these materials where you see citations to rules, they are the rules of the actual states. Now that states do vary some of these rules, we're going over, do not vary significantly, but most states will add a little here or take a little away there or change the formatting somewhat, especially when it comes to confidentiality, there are a couple of different ways states handle the obligations of confidentiality, which we're going to talk about.

   And I'll also show you how the different states handle this. When I cite into the rules, I'm citing to generally pretty standard rules in all the states, unless I tell you otherwise. And then I already talked about this to some extent, and that is the knowledge of electronic discovery. But remember comment eight to rule 1.1 on competency does state specifically to maintain the requisite knowledge and skill a lawyer should keep abreast of changes in the law and it's practice including the benefits and risks associated with relevant technology. Okay. We've covered that to some extent, but it also talks about protections or risks. And there is an obligation to protect technology. As I just mentioned, we have an obligation of confidentiality in some form in every state, and it is contained in rule 1.6.

   And it generally provides that a lawyer shall maintain as confidential or shall not disclose any matter related to the representation unless it falls in one of the exceptions. It's not limited to confidential information generally. However, there are states that do. But one thing that does happen is all the states do specifically provide in one format or another that the lawyer has an obligation to protect electronic data. Now I've mentioned metadata previously. And so when you send a document out to the other side in Word format, they are receiving the metadata related to that document. So most firms have of scrubbing ability, so that before an email is sent with the word document, the document is scrubbed of all metadata. So the metadata is not getting to the other side. But if it's an internal document, it may never have been scrubbed. Now after litigation starts and if you scrub metadata, you would be involved in spoliation, which we'll talk about in a minute. You cannot scrub metadata after you have knowledge of a claim.

   But in connection with the underlying transactions, scrubbing the information when you don't have knowledge of a claim is a better practice and firms should in fact, scrub the metadata from documents they send out. Every jurisdiction that is addressed metadata specifically states, it's the responsibility of the sending attorney to scrub the metadata from the information and the failure to do so could in fact be a violation of Rule 1.6. The general version of that rule is contained or states a lawyer shall not reveal information related to the representation of a client. Okay. I stated that. Now here are the exceptions, one, the client gives reasonable or gives consent after informed consent. The disclosure is impliedly authorized from the representation so that you are free to speak to the other side in litigation, or the disclosure is permitted by specific exceptions to the rule.

   Not only are you obligated not to send out metadata, but another mistake that lawyers make on a regular basis is email inadvertence. The first time I did this or that I know that I did this, I get the email from the client that says, look what the opposition has told me because they're still doing some business together. And I responded to that email saying, what an idiot. And then I got an email from the other side that said, who's the idiot? And for some reason, when I replied I to the other side, as well as the client. And so it became my embarrassment because I had not properly checked the addressees of email. Now that happened many, many years ago. And so I don't feel too embarrassed to tell that story at this point, but even as recently, as the last week or so, I sent an email to a client and it also went to the other side.

   And it was an email about an agency's action regarding the lawyer. And I replied to it and I said that, I thought the agency was wrong. Didn't say anything too outrageous. But then the client sends me an email back saying, did you mean to send it to the agency? And of course I did not. And so I said, no, I did not. But doesn't hurt them to know my thoughts on the matter. But it does, it can be a lot worse than that, and is a lot worse than that. I've been the beneficiary of missent emails. So some firms actually disable reply to all so that you actually have to put in the name. Some firms disable autofill so that you actually have to put in the right names. And as a result, it's at least a little more difficult to send an email to the wrong person. Another factor or something that you can do on your email, and this can be helpful is put a delay, a five minute delay or a two minute delay.

   And frequently when you hit the send button, you realize you've left somebody off the email or you've included somebody you don't want on the email just as you hit sent. Well, you can invite those people not to read the email, but that might as well be an invitation to read the email. So to be careful in that regard is just... is the obvious, but if you have that delay, it does. And you see the email as it's being sent is addressed incorrectly. You can then go into your outbox and change the email before it's sent.

   So those are some of the ways that you can avoid sending an email to the wrong person. The obvious advice is actually check the addressees before you send it. But lawyers are impatient, we get impatient, we get in a hurry and don't do a good job on that. Another thing that comes up from time to time is where a lawyer will copy their client on an email that they're sending to the other side. And then the lawyer will hit reply to all and will be communicating directly with the client of the opposition because they are just replying to all. The mere fact that a client is copied on an email by an attorney is not an invitation to you to communicate with their client. And by hitting reply to all you could technically be violating Rule 4.2, which deals with communicating with a represented person.

   We'll talk about that in a minute, but because lawyers frequently do copy their clients on emails, just wanted to give you the ethical warning that that's not an invitation to speak to the other side, including in the reply email, the other side, the other client. And in that regard also copying your client on the emails that you send to people you wouldn't want your client communicating with directly is a good... not copying your client is a good practice. Send them a separate email because clients also frequently hit reply to all, and they end up giving you information that they've sent, or they don't want the other side to know, but because they got a copy of an email and they respond to it and they hit reply to all they're sending information to the opposite side. So I don't copy my clients on emails, I send them a separate copy so that they do not inadvertently communicate with the other side.

   I'm not going to spend any time on this because if you have this problem, you're going to spend time on it to get around it. But it's the Stored Communications Act, the federal law that prohibits the disclosure of third party communications, dealing with companies like Google and perhaps Amazon and other companies that store communications. And the federal act generally, and I say generally, because there's exceptions do not allow the disclosure of that type of information by simply a subpoena. And they can refuse to comply. Facebook is another one obviously that falls within the parameters of that action or that act, which is the Stored Communications Act. In presenting a claim, one of the things that we sometimes forget about is that all your adversaries evidence is going to be prejudicial to your claim. Very rarely does an opposing lawyer intentionally provide information that's helpful to your side, although certainly I think they do. But remember that sometimes the evidence can be so prejudicial, confusing, waste of time, cumulative or any of other reason.

   And so when you're getting the other side's disclosures, and this is something you do by motion in limine is consider Rule 403. This is the federal version, but the states are similar, which is that anything that's going to be unfairly, unduly or confusing maybe excluded. And especially if it's unduly prejudicial. And just keep that in mind that under Rule 403, you do have an opportunity to pick at the opponents case. Making several motions on significant issues is not uncommon in larger cases, the jury trials. With the judge trial, it's probably little... Well, I always say there's a little benefit in filing a motion in limine with the judge trial, because you're going to address it by the trial brief. And then the judge in a bench trial so frequently will just say, we'll deal with this during the trial. But nonetheless just keep in mind that you have of an avenue to exclude evidence based on prejudice, confusion, cumulative evidence, or waste of time, and any other reason that would cause undue fairness, undue prejudice to your side of the case.

   Now I mentioned rule or part three of the rules of professional conduct as being related exclusively to litigation or adjudicated proceedings. And the first one I want to talk about, but we'll get to more in a minute is the duty to only pursue meritorious claims and arguments. The rule actually says meritorious claims and contentions, but we all know intuitively I suppose that we are not permitted to file a frivolous lawsuit. And that's also covered by Rule 11 or what in the federal system and in most states a Rule 11 violation is lack of some diligence in investigating the claim before you file it. Okay. But Rule 3.1, which is the ethical rule is actually broader than that. And it says that a lawyer shall not bring or defend a proceeding, or this is where the breadth of the rule comes in, assert or controvert an issue they're in, unless there is a basis in law or fact for doing so.

   Now that rule is in fact broader than the complaint and answer. This rule has actually been cited where lawyers have made frivolous objections at depositions, made frivolous motions. And the judge turns them into the bar association for prosecution because they're wasting the judges time with frivolous non-factual or legal based motions, arguments, et cetera. So remember under this, there is a duty not only not to file or answer a frivolous claim, but make frivolous claims in motions and discovery during the litigation itself. And also you'll see that rule... And we're going to talk about this in a moment, 3.4, also prohibits lawyers specifically from making frivolous discovery request or not acting reasonably in responding to discovery. You can make the argument that 3.1 also covers that same type of impropriety, but it is specifically addressed in rule 3.4.

   Now I've talked about this a couple of times. Now we're actually going to look at the rule in its context and it's the... The difference or the comparison of confidentiality, the ethical rule versus attorney-client privilege, the evidentiary rule. The ethical rule of confidentiality is simply a lawyer shall not reveal information. Doesn't say confidential information. It says, shall not reveal information relating to the representation of a client unless the client gives informed consent. The disclosure is impliedly authorized in the order to carry out the representation or the disclosure is permitted by paragraph B. Informed consent requires that the client know all the reasons for doing something or not doing something so that they can make an informed decision as to whether or not you're going to disclose. Using a transactional example is the easiest example, so I'm going to say that in connection with doing a transaction, you find out that your client has misled the other side regarding certain aspects of the transaction. And you want to reveal that to the other side.

   So you go to your client and say, I want to reveal it. And here's the pros and the cons of me doing so. And the client says, nope, I don't want you to disclose it. Now we're going to talk about what you should do under those circumstances, but that is where you would need informed consent. The other is disclosure is impliedly authorized in order to carry out the representation. In that regard, you could argue that making the disclosure would be part of the implied authorization you have to carry out the representation. But this also just makes clear that when you file an answer to a complaint, you're disclosing the name of the client. The first clause would actually prohibit you from doing that because it's information related to the representation.

   So this section says the disclosure is impliedly authorized in order to carry out the representation. So you're free to identify who you're answering for. Now, you may think that sounds silly, but, and it does sound silly, but that clause is relatively new because in fact, it was unclear how much communications a lawyer could have with the opposing counsel. And so it was put in to give the lawyer some protection in dealing with the opposing parties, making disclosures in discovery or in connection with motions and complaints. And or the disclosure is permitted by rule B. Rule B lists various exceptions to the obligation of confidentiality.

   But before we go there, here is the evidentiary rule of attorney-client privilege. And it's the client that has the privilege and the lawyer must abide by the client's privilege and protect it at all times. But it is, first, it has to be made for the purpose of facilitating the renditioning of professional services. Well, that's similar to Rule 1.6 in the sense that Rule 1.6 only regards information related to the representation. Then this rule goes on. The evidentiary privilege goes on and says communications between client and clients representative, Rule 1.6 does not require the communication between the client and the client representative. It's all information. And in fact, it's all information under Rule 1.6, regardless of the source of the information. So if you ever receive information about the representation of a client from a third party source, you still must keep it confidential under Rule 1.6, unless you fall within one of the exceptions.

   And then there's the common interest exception or preclusion under the ethics rule and all the communications must be made in confidence. And that's where we see in the third line or second or third line where it says, from disclosing confidential communication. So if the communication between the client and the lawyer is not confidential, and if it's not between the client and the lawyer, it's not subject to the attorney-client privilege. Now there are exceptions to that, of course. And just to give you a few as the at issue acceptance. For example, in some cases, a party may use the defense of reliance on the advice of counsel. Well, that puts the advice of counsel at issue and makes the information discoverable because you have put at issue the lawyer's advice. Another example that's not contained in the rules and there are exceptions that are codified in the rules as well is the good cause or fiduciary exception.

   So that if the fiduciary is acting on behalf of a trust has communications with the trust attorneys. The beneficiaries can get access to those communications, if there's good cause, or it falls within the fiduciary exception. There are various exceptions to the attorney-client privilege that are not codified. And so don't just simply read the rule and assume it is or it isn't subject to the attorney-client privilege there are various exceptions. There's also the work-product doctrine. And the work-product doctrine is codified in part. Now this is not a privilege or an ethical rule, but it is a protection. And what it does is protect documents of the client. Now, a lot of people refer to the attorney-product doctrine. It's actually broader than that. It's the client work product. The attorney work-product doctrine is a subset of the more general work-product doctrine.

   So if you have a client who is threatened with a lawsuit and one of the officers of the company is asked to analyze the lawsuit and set forth the options. And in doing so writes a very negative memorandum, but nonetheless writes a memorandum and it's harmful to the company's position and you don't want to produce. They ask for all documents related to the issue. You hold that back. You disclose that document on the privilege log as work product, and it is work product, but of course it was prepared by a party and in anticipation of litigation, therefore it's work product. However, attorney work product, as you'll see in the third line from the bottom, in ordering and discovery of such materials, the court shall protect disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party.

   So when people are referring to attorney work-product they're generally referring to the subset or should be referring to the subset of the more general rule contained in Rule 26(b)(5) of the rules of civil procedure. Of course, that rule varies from state to state. It's not always in (b)(5), this is the federal rule, but it's generally in Rule 26. Now the other thing to consider about work-product is, is it also applies to non-tangible work-product. The work-product doctrine codified in the rules is preparation of documents. But the work product at common law as developed in Hickman, Hickman v. Taylor, is it also applies to non-tangible work product. So if the officers of the company are discussing theories, witnesses and such without the presence of a lawyer, it would not be protected by attorney-client privilege, but it could still be protected by the work-product doctrine that is not codified in Rule 26, but is developed by the court.

   And by the way, there is extensive case law on the existence of non-tangible work-product. So what is the relationship? I think I've made it somewhat clear is the rule of confidentiality applies and the ethical rule of confidentiality applies regardless of where you are, what proceeding you're in or the status of any case claim or negotiation. Whereas the attorney-client privilege is only asserted in connection with judicial proceedings. It's your obligation of confidentiality that generally prohibits you from talking about client matters outside the judicial process. But once you get in and decide the judicial process for the evidentiary purposes it's attorney-client privilege. But you also have a basis for withholding information, but of course you would have to disclose it under Rule 26, if you're withholding information or based on the principles of confidentiality.

   Now know I did mention that the states, some states have a different rule regarding confidentiality, other than the one I read to you. And for example, California, New York, New Mexico, Alaska, and Minnesota, a few other states have a rule that is based upon the idea that the attorney-client privilege is part of the rule of confidentiality. And what those rules, those states do in essence is say, the lawyers shall maintain as confidential, confidential information. And then those states define what is confidential information. The first definition is matters protected by attorney-client privilege. Okay, so I've already shown you that that is more narrow than the general idea of confidentiality that's based on the ABA model rule. But the next exception to disclosure is something that would be embarrassing, prejudicial, or harmful to the client. Now, as lawyers, we really don't know what is going to be embarrassing, harmful, or prejudicial to the client in all respects. And we may think some fact is not harmful at the time we make the disclosure turns out to be harmful.

   So the better practice or the safer practice for protection of the client is just treat everything as confidential, as the more general rule dictates. And then the third exception under those states' rules is information that the client request to be kept confidential. The issue with that rule is that clients don't know that they have to tell the lawyer to keep something confidential. Most people think there's a privilege, attorney-client privilege, and that everything they say to the lawyer is privilege. Not true. All information is not privileged because if it's not within the scope of the representation or in connection with... in other words, in connection with rendering a professional advice, if it's not between... If it's about a conversation and it's not between the lawyer and the client, it's not going to be protected.

   So the idea here is clients may not be fully aware of their obligation to inform you of what not to disclose. So at a minimum, you should tell clients that if you want something to be protected for sure, because I may not know, tell me. The other and safer practice is just simply don't disclose anything and that way you won't run afoul of that rule. Or otherwise, even if you don't run afoul of the rule, harm your client inadvertently. We've mentioned this previously and that concerns the communications with represented and unrepresented parties. In depositions, you frequently will hear, frequently meaning sometimes, you'll hear a lawyer tell a witness, you don't have to answer that question and here's why, and explain to them their legal rights. And you'll also could hear that in other settings, that's just one you see most commonly as a litigator. Or you see somebody talking to a witness and tell them this, give them other advice.

   Rule 4.2, excuse me, 4.3 provides that when you're dealing with a person that's not represented by a lawyer, the lawyer shall... And this is Rule 4.3, the lawyer shall not state or imply that the lawyer is disinterested. In other words, trying to disarm the witness through a somewhat misrepresentation. But you have to disclose that you're an advocate for one, not in those terms, but that is clear that the person understands who you represent and what you're doing. When the lawyer knows the reason we should know that the unrepresented person understands the lawyer's role, the lawyer must correct the misunderstanding. And then this is where we're talking about the legal advice. The lawyer shall not be give legal advice to an unrepresented person other than to secure their own counsel if the lawyer knows or should know that the interest of such person are or have a reasonable possibility of being in conflict with the client represented by the lawyer.

   So what happens is, when these lawyers are giving advice to a client or to a third party unrepresented by a lawyer, they're not giving advice for the advantage of that witness, they're giving advice to protect their client's interest because that witness's interest and the client's interest very well may not be parallel and that there is a reasonable possibility for a conflict. So the safer practice is don't give any advice to a third party unrepresented by a lawyer other than to seek independent counsel. Now, with respect to rule 4.2, this is the one we all know. Nonetheless, it still gets violated from time to time. And that is, 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, unless the other lawyer gives consent. Now that doesn't mean you cannot ask the person if they're represented by counsel. And if they say, yes, you stop your conversation. And if they say, no, you can speak further.

   It doesn't prohibit you from speaking with a person represented by council about things that are unrelated to the litigation. You can certainly talk about the weather, unless the weather's subject to the litigation without violating this rule. Okay. Now going back to the rules regarding litigation itself, and these are the two big rules, that's 3.3 candor towards the tribunal. And 3.4, which is a fairness to opposing party and counsel, which may sound like a misnomer, but there are provisions of pertinence in that rule. First, with respect to candor towards the tribunal, a lawyer shall not knowingly make a false statement of fact law to a tribunal or fail to correct a false statement of material fact law previously made. So if the lawyer has made a representation of fact to the court, that the lawyer finds out to be incorrect, the lawyer must take corrective action.

   The question that frequently arises is, well, wait a minute. What about my obligation of confidentiality or my obligation of attorney-client privilege? Well, when you're dealing with the court, those kinds of protections while you're making representations to the court, those kind of questions go away. And if you go down to the rule C in Rule 3.3, you'll see that the duty state in paragraphs A and B continued to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. And then under the attorney-client privilege, there are various exceptions. And one of the exceptions is... Well there's several exceptions that would also permit the disclosure to the tribunal when asked. But lawyers are prohibited from making false statements or failing to correct a false statement of material fact or law previously made. Okay. That one is easy to understand. 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.

   Well, I know it's tempting when opposition fails to cite the controlling case, that would support their position. And you now have a good argument to show that they're wrong. And in your own mind, you actually come to the conclusion that you can distinguish that case and therefore don't have to cite it. Well, the fact of the matter is judges do sometimes do their own research and or may otherwise be familiar with that authority. To maintain your own credibility with the tribunal, you would want to disclose the legal authority and then give your best argument as to why it's not applicable to the case, and then make fun of your opposing counsel for not arguing from it. And nonetheless we are duty bound to disclose legal authority that is controlling when we make motions or make arguments. We are also prohibited from offering evidence that the lawyer knows to be false.

   And if the lawyer's client or a witness called by the lawyer offers false evidence, that is material. The lawyer, again, must take remedial measures to correct the false testimony. So you see the whole here is that if the lawyer doesn't call a witness or it's not the lawyer's client and the material's false, you have no obligation to correct it. Of course on the other hand, you may not know what's materially false. I'm going to give you an example of that, that is a true example. And it is at a contractor has a deal with a government inspector that is to count the weight of loads of fill that are coming to the construction site. The loads are underfilled and the inspector puts down an incorrect weight, a higher rate than is actually weighed at the station where they're measuring the fill.

   And so the contractor makes significantly more money because it's on a volume basis, compensation is based on volume. And the contractor actually enters into a contract with the inspector to pay the inspector 10% of everything they cheat the government out of. This is what's incredible is it's in writing. And they put it in writing. It's not disclosed at all. And so at trial, the inspector is asked and the lawyer for the contractor doesn't call the inspector, the other party does. And ask the inspector do you have any agreements with the contractor and the witness testifies? No, I do not. Your client then says, here's the agreement that we do have an agreement. Of course, I wouldn't want anybody to know about it and you can't tell anybody, but here's the agreement I agreed to pay him 10%. Now, you know the evidence is false. And so that would undercut the credibility of the inspector who's testifying.

   So what do you have to do? We'll under, at this rule, you're not the one offering the evidence, you're not offering the witness and it's not your client. So you have no obligation to take remedial action. However, the next subpart of this rule, subpart B of Rule 3.3 provides a lawyer who represents a client in adjudicated proceeding and who knows that a person intends to engage is engaging or has engaged in criminal or fraudulent conduct relating to the proceeding shall take reasonable remedial measures. In other words, you have the specific rule under A3 of Rule 3.3 dealing when you're putting on the evidence. But that rule is broader. You also have the obligation to take remedial action. If somebody you know has test incorrectly and those duties of taking remedial action continue to the end of the proceeding and apply notwithstanding your obligations of confidentiality. So what is remedial action? The procedure is you first talk to your client or the witness or whoever and tell them that they need to correct the testimony. And if they don't, you're going to reveal it for them.

   And what then happens is you ask the court for a private session. I mean, if the clients and witnesses refuse to correct it, you ask for a private session with the judge. Frequently, a lawyers will, and it's appropriate to ask to withdraw because you have a conflict with your client in the middle of the trial. Judges frequently, generally will not allow that, even though they now know there is an ethical issue or at least should know, unless they just graduated from law school they should know that there is an ethical issue. That is not taking remedial action by the way. Withdrawal is not remedial action. Remedial action actually requires disclosure. Now there's arguments that it doesn't require disclosure, the withdrawal itself is sufficient to put everybody on notice that there's impropriety. But that doesn't fall within the definition of remedial action. So anyway, that's my view of it, although some people take the view that merely withdrawing is sufficient.

   Likewise, we have a duty of truthfulness under Rule 4.1. Now that rule applies to anything just like to any representation, not just in court proceedings. But the difference between that rule and 3.3 is in this rule, you are still subject to and bound by Rule 1.6. but there are exceptions to Rule 1.6. And one of those exceptions is your client engaging in criminal or fraudulent act causing damage to the other side. When you have a dishonest witness, you have that obligation of truthfulness that we've already talked about in Rule 4.1, but you're also prohibited from Rule 1.2, which deals with the scope of the representation from assisting a client in conduct that the lawyer knows is criminal or fraudulent. So by assisting your client in connection with giving false testimony or otherwise acting dishonestly, you're also violating rule 1.2 as well as possibly 4.1.

   And then you have the general rule of 8.4, which provides that it's professional misconduct to engage in conduct involving, this is subpart C, involving dishonesty, fraud, deceit, or misrepresentation. And then D engaging conduct that is prejudicial to the administration of justice. So you have three different rules that require honesty. There is a concept of noisy withdrawal and it does apply, can apply in judicial proceedings as I've stated. I don't think it's sufficient to just simply withdrawal. I think you're required to do more. However, a lawyer can avoid assisting a client in criminal or fraudulent action before it's occurred by withdrawing. And when you do withdraw, you have to disclaim, disaffirm any opinions, document statements, representations you may have made, and that's sometimes referred to as a noisy withdrawal. You first tell your client to make the disclosures, if they refuse you withdraw.

   But once the testimony has been given and the fraud has been committed on the court, I think remedial action requires more than simple efforts to withdraw. And then the right of withdrawal contained in Rule 1.16 B does provide specifically that a lawyer may withdraw the client persistent a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent. And then the other one is in subpart three, the client has used the lawyer services to perpetuate a crime or fraud. Now the next major rule is fairness to opposing counsel and that is in rule 3.4. And the lawyer shall first of all, not unlawfully obstruct other parties to access to evidence or alter, destroy, or conceal a document or other material having potential evidentiary value. When you're talking about that contract during discovery, the contract was requested to be produced if there was one of the contractor between the contractor and the inspector. That contract was not produced.

   Once the lawyer learned that if it had been before trial, they still would've had issues with failure to disclose the document under this rule, which states a lawyer shall not counsel or assist another person to do any such act, which is conceal a document, having potential evidentiary value. Accordingly, even if they find out about it before trial, they still have the obligation to supplement discovery. Lawyers obviously are prohibited from falsifying evidence or inducing somebody else to do so or knowingly disobeying an obligation of the court without an open refusal. So if you're claiming a document is privileged, for example, and you're required to give a privilege log like most rule 26's require, if you're going to withhold that privileged document based on privilege, you have to disclose it. Making a unilateral decision is not fair to the other side because they can't challenge your unilateral decision that the document is privileged and therefore subject to protection.

   Whenever you're not responding to or disobeying a request for information without an open refusal, you're violating not only your ethical obligation, you're also violating the rules of discovery. And that also goes to spoliation. And spoliation is one of the... some states actually recognize it as a cause of action. But spoliation is one of those things that has a lot of discretion, and it can be very valuable if something is destroyed or harmful if something is destroyed. But a lawyer has a duty to preserve evidence independent from any court order if it involves, if there is pending or probable litigation involving the party with the information or documents and knowledge by the plaintiff of the existence or likelihood of litigation... foreseeable harm if the evidence is destroyed and the evidence is relevant to the litigation, which is essentially the same to thing as having evidentiary value.

   The scope is of course not limitless, but where you know that there's a potential for litigation, you have a piece of evidence, whether it be a document or testimony or something else that could be harmful and you destroy it, you're subject to claims of spoliation. A violation a spoliation is discretionary with the court. It can be anything from merely having the presumption that the evidence was harmful to you given to the jury to loss of the claim or defense because of keeping of the... or destroying of the information. There are special rules on electronically stored information contained in Rule 26. And there are sanctions for spoliation or can be used for spoliation in Rule 37 of the Rules of Civil Procedure.

   Let's see. And my final comment, and this is one of practice is that ethically we are prohibited from alluding to any matter at trial that we do not believe is relevant and not supported by admissible evidence or assert personal knowledge of facts and issues, or our opinions of witnesses or opinions. We're the ones that are trying the case, we're not witnesses, we're not expert witnesses. We are not to render our personal opinions, nor are we to refer to irrelevant information. The problem is when your opponent does that you stand up and object. And what you've now done is highlighted the issue for the jury.

   I wish judges would take on a more active role, but on the other hand, the judge thinks you're in control of your own case. It's a judgment call if you're going to make the objection. But this is Rule 3.4(e) it's part of the duties, fairness to opposing counsel. One of the things that you can do to protect yourself is actually file a motion in limine with standard object stating that because of the wealth differential or because of whatever you think is going to be highly prejudicial. You're asking for a pretrial instruction that this cannot be referred to. And you can insert such things as testifying about relevant information, irrelevant information like wealth that they may... The other side may bring into court. Now, when you file these motions in limine frequently, the lawyers will say, I would never do that anyway. Why would you file a motion in limine on that?

   And the reason why is so that you don't have to make the objections specifically and highlight the issue as much. But when you stand up and make the objection, you stay pursuant to the motion in limine and your order on the motion in limine, I object. Now, the judge may still say you are to disregard or whatever that may or may not be as harmful as you expect. But when the judge is saying, as opposed to you, there is a little more credibility. The other thing you lose credibility on is you make the objection, the judge is not pre-warned about it, denies the objection, and then it appears to the jury that wealth or other irrelevant factors may in fact be pertinent. So making your record with motions in limine about irrelevancies can be of assistance. And that goes back to some of my comments regarding Rule 403.

   So with that, I hope that you've gotten something out of this and the rules of professional conduct are not self explanatory. And when you do run into issues that you think may be covered by the rules, don't just use your best guess, actually pick up the rules. They're not difficult to review, understand, especially with the comments. So thank you very much.

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1h 2m 36s

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