make reasonable efforts to correct a misunderstanding. For former employees, MR 4.2: consent is not required for a former employee Clients can directly communicate without violating rules Which employees are represented by company counsel? MR 4.2: Those with managerial authority, acts or omissions could be imputed to company Lawyer must have actual knowledge of the representation Problem 6: Paying Lay witness: cannot compensate for CRPC 5-310(B): Expert fee cannot a testifying time and trouble (beyond making the be contingent on outcome of case expenses witness whole) witness’s MR 3.4(b): Expert witness: can compensate for professional services, but cannot be contingent on outcome of case or content of testimony Problem 7: MR: alter evidence or CRPC: continue can’t Can’t Adversary unlawfully obstruct access, must representation if the objective is to intentionally made make reasonably diligent effort to harass another person, can’t copies hard to read comply with discovery suppress evidence that you have a legal obligation to produce. If attorney is guilty of deceit, misdemeanor Problem 8: Best MR 3.5(b): communicate ex CRPC 5-300(B): Can communicate Can’t way to call a parte with judge, unless local law or in open court, with consent of other attention court order permits it counsel, in the presence of other judge’s to a new appellate counsel, in writing with a copy Written communication with judicial decision furnished to opposing counsel officer is not considered ex parte if also served on the other side Can get an ex parte motion with 1 day notice Look at local rules, talk to clerk at court Problem 9: Trial MR 3.6: restrictions on what CRPC 5-120: similar to MR tactics with attorneys can share with media. Right of reply reporters Balance right to a fair trial and free expression and right to know public’s Right of reply - Lawyer can make a public statement if that statement is required to protect the client from substantial undue prejudicial effect of publicity that the client initiate didn’t MR 3.8(f): additional constraints on criminal prosecutors. Prosecutor must refrain from statements that may heighten public condemnation of accused, and take reasonable care to
make reasonable efforts to correct a misunderstanding. For former employees, MR 4.2: consent is not required for a former employee Clients can directly communicate without violating rules Which employees are represented by company counsel? MR 4.2: Those with managerial authority, acts or omissions could be imputed to company Lawyer must have actual knowledge of the representation Problem 6: Paying a testifying witness’s expenses Lay witness: cannot compensate for time and trouble (beyond making the witness whole) MR 3.4(b): Expert witness: can compensate for professional services, but cannot be contingent on outcome of case or content of testimony CRPC 5-310(B): Expert fee cannot be contingent on outcome of case Problem 7: Adversary intentionally made copies hard to read MR: can’t alter evidence or unlawfully obstruct access, must make reasonably diligent effort to comply with discovery CRPC: Can’t continue representation if the objective is to harass another person, can’t suppress evidence that you have a legal obligation to produce. If attorney is guilty of deceit, misdemeanor Problem 8: Best way to call a judge’s attention to a new appellate decision MR 3.5(b): Can’t communicate ex parte with judge, unless local law or court order permits it Written communication with judicial officer is not considered ex parte if also served on the other side CRPC 5-300(B): Can communicate in open court, with consent of other counsel, in the presence of other counsel, in writing with a copy furnished to opposing counsel Can get an ex parte motion with 1 day notice Look at local rules, talk to clerk at court Problem 9: Trial tactics with reporters MR 3.6: restrictions on what attorneys can share with media. Balance right to a fair trial and free expression and public’s right to know Right of reply - Lawyer can make a public statement if that statement is required to protect the client from substantial undue prejudicial effect of publicity that the client didn’t initiate MR 3.8(f): additional constraints on criminal prosecutors. Prosecutor must refrain from statements that may heighten public condemnation of accused, and take reasonable care to CRPC 5-120: similar to MR Right of reply
Ethical-Lawyering-Dudovitz-2014.docx