1 New York Rule 33 the standard is actual knowledge 2 Extreme argument the

1 new york rule 33 the standard is actual knowledge 2

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1. New York, Rule 3.3 : the standard is actual knowledge . 2. Extreme argument: the lawyer never knows, because truth comes from the witness stand. 3. More accepted view: if you know beyond a reasonable doubt, then you withdraw. See Nix v. Whiteside . (Problem: threatening client with withdrawal may discourage him from telling truth.) 4. Other solution: avoiding knowledge. XI. Special Issues in the Adversary System A. One view: it is not up to the lawyer to determine facts. Also, lawyer should be able to use all of the tools at his disposal in the furtherance of zealous advocacy. B. Other view: a lawyer has a responsibility to the truth. C. Examples 1. Proper v. improper argument. Rule 3.4(e), DR 7-106(C) . 2. Encouraging false inferences. 3. Coaching. 4. Frivolous positions and abusive tactics. Rule 3.1 . 5. Dilatory tactics. Rule 3.2, 4.4 . 6. Threatening criminal prosecution. DR 7-105(A) , nothing in Rules . 7. Misconduct. Rule 8.4, DR 1-102 . D. The lawyer also has certain obligations. 1. Cannot misstate facts, precedent, or record. Rule 4.1, DR 7-102(A). 2. Obligation to reveal adverse legal authority . Rule 3.3(a)(3), DR 7- 106(B)(1) .
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Professional Responsibility Outline Spring 2001 Page 16 a) Do you have the obligation to say you don’t have a case? It depends upon how much information you have. 3. Destruction of evidence : no-touch rule XII. First Amendment Rights of Lawyers A. Exceptions to a lawyer’s right of free speech 1. A lawyer enjoys less freedom than do others to speak publicly about his cases . See Gentile v. State Bar (Supreme Court reverses discipline of attorney who made pre-trial press conference, possibly because he researched the ethics rules; majority held that Nevada’s rule allowing only “general” comments was void for vagueness). Rule 3.6, DR 7-107. 2. Attys can be disciplined for false/reckless accusations against judges . 3. Gag orders : sometimes upheld, sometimes not. 4. Mandated bar membership . B. Why have a different rule for lawyers? 1. A lawyer’s words may have more effect on the public view. Hence, “substantial harm” standard is used instead of “clear and present danger”. 2. Contra: there are other ways to control the effect of public comments by a lawyer, such as voir dire and gag orders. XIII. Financing Legal Services A. The role of the marketplace 1. Can an attorney charge whatever the market is willing to pay? Yes, if fee is not unconscionable. Brobeck, Phleger & Harrison v. Telex Corp. 2. Other methods: value billing, fee-shifting statutes. B. Unethical fees 1. Ethics codes limit the size of attorney’s fees. Rule 1.5, DR 2-106 . 2. Whether or not a fee will be held unethical may depend on the situation of the client . See Bushman v. State Bar (standard retainer fee charged to clients on welfare declared excessive; disproportionate).
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Professional Responsibility Outline Spring 2001 Page 17 3. Courts may order a reduction of the fee or deny a fee altogether. 4. Some jurisdictions (such as New York ) have prohibited non- refundable retainer fees . See, e.g., Matter of Cooperman (such fees go against the unqualified right to terminate the attorney-client relationship).
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