Civil case attorney doesnt have to put client on the stand and shouldnt in this

Civil case attorney doesnt have to put client on the

This preview shows page 13 - 16 out of 21 pages.

Civil case – attorney doesn’t have to put client on the stand and shouldn’t in this caseCriminal case – client has absolute right to testify, even if he’s going to lieoAttorney can’t deny the right but also cannot facilitate the perjury. In NY, attorneys do not ask their lying witness any questions and just let them tell a narrative. By not asking questions there is no facilitation and when an attorney does this to their own client, the court understands why.C. Fostering Falsity or Advancing Truth? (p. 285) – misleading the judge or juryWitness PreparationCan you tell your client what the law is and then leave your client to decide how he wants to testify, taking into consideration how the law would apply to what he says.Arg: This is not right b/c it’s coloring the witness’ testimonyArg: Educating your client about the law is part of full preparation
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Bronston v. U.S. – even if witness intended to mislead the judge/jury, he did not lie so it was not perjury literal truthU.S. v. DeZarn(p. 293)Distinguished from BronstonCross Examining truthful witnessDon’t take a novel approach to an issue, especially if it’s strongly established, unless you have a good basis for it. Don’t bring frivolous suits. NegotiationNegotiators have restrictions:Make no material misrepresentation Make no material omissionsRule 4.1 Estimates of values/estimates of settlements are not considered statements of material factsReason for 4.1 rules are b/c unlike in a trial where the judge is presiding over the case to ensure ethical behavior, there is no one looking over in a negotiationThe Bad Buider’s Good Lawyerp. 357R. 1.6 (confidentiality) creates the tension 1.6(b) – exceptions to confidentiality1.6(b)(2) – attorney can disclose to preventa fraud/crime (in NY the fraud has to be criminal in order to trigger 1.6(b) exception)oIf attorney found out about fraud before closing then 1.6(b)(2) would apply b/c attorney would still have chance to prevent Sonnibels from being defraudedoIf attorney found out about fraud after closing then 1.6(b)(2) would not apply to the Sonnibels b/c they already closed and nothing to preventoBut, there are still 7 homes on the market w/faulty plumbing and disclosing could prevent fraud in the case of those clients (even tho we don’t know who they are)1.6(b)(3) – attorney can withdraw if, before closing, she has discovered that the representation was fraudulentoNoisy withdrawal – attorney could disclose why she is withdrawing but there is more risk with this kind of withdrawal, more backlash likely from contractor (Klunny)1.6(b)(4) R. 4.1 – truthfulness to others 1.16 terminating representation 1.16(b)(1) – lawyer shall withdraw from representing client when lawyer knows or should know that representations are against the rules of ethics or against the law
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1.6(c)(2) - lawyer may withdraw when client is continuing to take actions involving the lawyer’s services that the lawyer thinks is fraudulent R. 3.3 – conduct before a tribunal
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  • Spring '14
  • MichaelStone
  • Law, criminal law, Lawyer, Confidentiality, attorney, Attorney-client privilege

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