TOPIC M: DUTIES TO COURTS 2016 P.R. Prof. Janicke

A NON-FRIVOLOUS BASIS FOR EVERYTHING LAWYER MUST HAVE A BASIS “IN LAW AND FACT” FOR EVERY ASSERTION AND FOR EVERY CONTROVERTING R. 3.1 CAN BE A GOOD-FAITH ARGUMENT FOR MODIFICATION OR REVERSAL OF EXISTING LAW –BUT YOU MUST SAY SO 2016TOPIC M: DUTIES TO COURTS2

THE PROVISION FOR MODIFICATION OR REVERSAL WILL NOT WORK FOR A STATUTE, UNLESS IT IS UNCONSTITUTIONAL IT WILL NOT WORK FOR A RULE, UNLESS THE TRIBUNAL HAS POWER TO CHANGE IT 2016TOPIC M: DUTIES TO COURTS3

CRIMINAL PLEA OF “NOT GUILTY” IS OK REGARDLESS OF THE KNOWN FACTS AND EVIDENCE –“REQUIRE THAT EVERY ELEMENT BE ESTABLISHED” R. 3.1, LAST SENTENCE BUT AN AFFIRMATIVE DEFENSE WOULD BE BOUND BY THE RULE 2016TOPIC M: DUTIES TO COURTS4

[TEXAS CIVIL] THE PRACTICE OF PLEADING A GENERAL DENIAL IS OKed IN TEXAS RULES Tex. R C3 AN EXCEPTION TO THE GENERAL U.S. RULE DISCUSSED HERE 2016TOPIC M: DUTIES TO COURTS5

MORE OF THE SAME R. 3.3 NO FALSE STATEMENT OF FACT OR LAW ALLOWED MUST CORRECT ANY FALSE STATEMENT PREVIOUSLY MADE BY THE LAWYER MUST DISCLOSE KNOWN “DIRECTLY ADVERSE” AUTHORITY 2016TOPIC M: DUTIES TO COURTS6

R. 3.3, CONT’D. MUST NOT OFFER EVIDENCE “KNOWN TO BE FALSE” R. 3.3(a) IF IT HAS BEEN OFFERED BY LAWYER, CLIENT, OR WITNESS “CALLED BY” THE LAWYER, LAWYER MUST TAKE REMEDIAL ACTION 2016TOPIC M: DUTIES TO COURTS7

“FALSE” SIMPLY MEANS UNTRUE, WHETHER INTENTIONALLY OR MISTAKENLY 2016TOPIC M: DUTIES TO COURTS8

BELIEVED TO BE FALSE? THE RULE ALLOWS A LAWYER, IN MOST CIRCUMSTANCES, TO REFUSE TO PRESENT EVIDENCE IF THE LAWYER “REASONABLY BELIEVES” IT TO BE FALSE R. 3.3(a)(3) EXCEPTION: TESTIMONY OF CRIMINAL DEFENDANT (CONSTITUTIONALLY PROTECTED” 2016TOPIC M: DUTIES TO COURTS9

REALITY NO LAWYER WANTS TO KNOW FOR SURE NO LAWYER WANTS TO HAVE BELIEFS ABOUT TRUE/FALSE 2016TOPIC M: DUTIES TO COURTS10

CLIENT’S PLAN R. 3.3(b) IF LAWYER KNOWS CASE PLAN IS CRIMINAL OR FRAUDULENT, REMEDIAL MEASURES ARE NEEDED –INCLUDING DISCLOSURE TO TRIBUNAL, IF NECESSARY EXAMPLES: THREATENING OR BRIBING JURORS OR WITNESSES; TESTIFYING FALSELY 2016TOPIC M: DUTIES TO COURTS11

RULE TRUMPS CONFIDENTIALITY REMEDIAL RULE CONTINUES UNTIL END OF THE PROCEEDING R. 3.3(c) OVERRIDES CONFIDENTIAL INFO RULE 1.6 R. 3.3(c) 2016TOPIC M: DUTIES TO COURTS12

WHAT REMEDIAL MEASURES? FIRST, TAKE UP WITH CLIENT C10 –MAKE A PLAN TO RECTIFY IF THAT FAILS, CONSIDER: –WITHDRAWING [POSSIBLE SIGNAL] C15 –INFORMING THE COURT FLAT OUT 2016TOPIC M: DUTIES TO COURTS13

SPECIAL RULE FOR EX PARTE PROCEEDINGS E.G., TEMPORARY RESTRAINING ORDER, ADOPTION LAWYER MUST DISCLOSE ALL KNOWN MATERIAL FACTS THAT ARE ADVERSE R. 3.3(d) ANYTHING NECESSARY TO AN “INFORMED DECISION” R. 3.3(d) C TOPIC M: DUTIES TO COURTS14

DUTY TO EXPEDITE LITIGATION R. 3.2 DOES NOT MEAN RUSHING IN RULE PRECLUDES: –ROUTINELY SEEKING CONTINUANCES FOR CONVENIENCE OF COUNSEL C1 –LONGSTANDING LOCAL CUSTOM IS NOT AN EXCUSE C2 2016TOPIC M: DUTIES TO COURTS15

MOTIVATIONS FOR VIOLATING THIS RULE CLIENT ADVANTAGE – E.G., DATE FOR FINANCIAL REPORTING; MERGERS; ELECTION DAY; BANK CREDIT HELPFUL PRESS COVERAGE – E.G., STOCK PRICE AIDED BY LONGSTANDING VIGOROUS DENIALS 2016TOPIC M: DUTIES TO COURTS16

DUTY OF FAIRNESS TO OPPOSING PARTY AND COUNSEL R. 3.4 A LONG RULE PARA. (a): NO “UNLAWFULLY” OBSTRUCTING ACCESS TO EVIDENCE –INCLUDES SPOLIATION –A BIG TOPIC TODAY 2016TOPIC M: DUTIES TO COURTS17

PARA. (b): NO FALSIFYING EVIDENCE (EVEN IF NOT OFFERED) NO PROHIBITED INDUCEMENTS TO WITNESSES –CAN PAY EXPENSES, BUT NO FEE FOR FACT WITNESSES C3 –NO CONTINGENT FEE FOR EXPERT WITNESSES C3 2016TOPIC M: DUTIES TO COURTS18

“OBSTRUCTION OF JUSTICE” IS THE EASIEST OF ALL CRIMINAL TRAPS FOR A LAWYER OR CLIENT TO FALL INTO! ONE PHONE CALL WILL DO IT ONE WRONG ANSWER IN “JUST A ROUTINE INQUIRY” WILL DO IT 2016TOPIC M: DUTIES TO COURTS19

NO BREAKING OF RULES or ORDERS R. 3.4(c) UNLESS OPENLY –CHALLENGE TO A RULE OR ORDER 2016TOPIC M: DUTIES TO COURTS20

DISCOVERY REQUESTS R. 3.4(d) NO FRIVOLOUS REQUESTS NO DODGING THE OTHER SIDE’S REQUESTS –NEED REASONABLY DILIGENT EFFORT TO COMPLY 2016TOPIC M: DUTIES TO COURTS21

COMMENTS AT TRIAL R. 3.4(e) NO ALLUDING TO IRRELEVANT THINGS NO ALLUDING TO THINGS THAT WILL NOT BE SUPPORTED BY EVIDENCE NO ASSERTING PERSONAL KNOWLEDGE (“I KNOW” “WE ALL KNOW”) OR OPINION 2016TOPIC M: DUTIES TO COURTS22

NO BLOCKING WITNESSES R. 3.4 (f) NO REQUESTING A NON-CLIENT TO REFRAIN FROM VOLUNTARY TESTIMONY –EXCEPTION: EMPLOYEES OF CLIENT, IF NO HARM TO THEM 2016TOPIC M: DUTIES TO COURTS23

NO BRIBING JUDGES OR JURORS R. 3.5 OR EVEN PROSPECTIVE JURORS NO COMMUNICATING EX PARTE WITH ANY OF THE ABOVE, UNLESS ALLOWED BY LAW OR BY COURT ORDER –APPARENTLY FORBIDDEN ON ANY SUBJECT 2016TOPIC M: DUTIES TO COURTS24

THIS MEANS: NO DISCUSSIONS WITH JURORS PRE-VERDICT LAWYERS (EVEN THOSE NOT ON THE CASE) CANNOT DISCUSS ANYTHING WITH A SITTING JUROR – NOT EVEN THE WEATHER R. 3.5(b) NO EXCEPTIONS 2016TOPIC M: DUTIES TO COURTS25

RESTRICTIONS ON POST- VERDICT TALKS WITH JURORS COMMONLY DONE OK, UNLESS: –PROHIBITED BY COURT RULE OR ODER; or –JUROR DOES NOT WANT TO TALK; or –COERCION, HARASSMENT R. 3.5(b) 2016TOPIC M: DUTIES TO COURTS26

TRIAL PUBLICITY R. 3.6 NO PUBLIC COMMENT ON PENDING CASE IF: 1.IT WILL BE DISSEMINATED PUBLICLY AND 2.CREATE SUBSTANTIAL LIKELIHOOD OF “MATERIALLY PREJUDICING” AN ADJUDICATIVE PROCEEDING 2016TOPIC M: DUTIES TO COURTS27

SAFE HARBOR #1 R. 3.6(b) PUBLIC COMMENT OK IF LIMITED TO: –CLAIM OR DEFENSE INVOLVED –INFO IN THE PUBLIC RECORD –SAYING INVESTIGATION IS IN PROGRESS –SCHEDULING OF COURT STEPS –REQUEST FOR ASSISTANCE IN GATHERING EVIDENCE –WARNING OF DANGER, IF PRESENT 2016TOPIC M: DUTIES TO COURTS28

SAFE HARBOR #2 R. 3.6(b)(7) IN ADDITION TO #1, IN A CRIMINAL CASE, OK TO REVEAL: –D’s IDENTITY, RESIDENCE, OCCUPATION, FAMILY STATUS –NEEDED INFO FOR APPREHENSION –TIME AND PLACE OF ARREST, IF ANY –ID OF INVESTIGATING OFFICERS AND AGENCIES 2016TOPIC M: DUTIES TO COURTS29

LAWYER AS WITNESS R. 3.7 IS OK, BUT CANNOT ADVOCATE THE CASE –EXCEPTIONS: UNCONTESTED ISSUE SUBSTANTIAL HARDSHIP TO CLIENT ON VALUE OF LEGAL SERVICES RENDERED 2016TOPIC M: DUTIES TO COURTS30

WHEN BLOCKED BY THE LAWYER- WITNESS RULE: –A COLLEAGUE CAN TAKE OVER R. 3.7(b) –BLOCKED LAWYER CAN ASSIST 2016TOPIC M: DUTIES TO COURTS31