must inform tribunal of all material facts for the court to make an informed judgment Should lawyers avoid becoming friends with judges? [CB 708] o Rule 3.5 prohibits only communications related to particular proceedings, not personal communications May a lawyer contact a judge’s chambers to ask a procedural question? [CB 708] o Yes , but not entirely clear if it is a ministerial question o Prevailing view in N.Y. is that you are on shaky grounds if you ask anything other than “what time is court” “what is the page limit” etc. o Note: judges violate a judicial canon if they call one side without the other side present Lawyer’s Comments to the Press [CB 710] 61
Ethics in Litigation Master Outline o The Gentile case [CB 710–11] Attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment o Rule 3.6 : Trial Publicity (a) a lawyer who is participating or has participated…you may not make a public statement that the lawyer knows or reasonably should know will…have a substantial likelihood of material prejudice to an adjudicative proceeding in the matter NOTE : knowledge standard! ACTUAL knowledge of SUBSTANTIAL likelihood to prejudice judge/jury This only covers/applies to people involved in the case I MPEACHMENT OF T RUTHFUL W ITNESSES If a lawyer believes that an opposition witness is truthful, may the lawyer cross-examine the witness in a way that suggests that the witness is lying? [CB 716] o The Rules don’t explicitly address this issue Generally, a lawyer’s belief or knowledge that the witness is telling the truth doesn’t preclude cross-examination. See Restatement Section 106, comment c, reporter’s note. In part, the rationale is that the cross-examination is undertaken merely to test the truth of the prosecution’s case. Id. So, an attorney is allowed to test a witness. o Rule 1.2 : must advance your client’s interests within the bounds of the law so long as the lawyer isn’t offering false evidence o Rule 4.4(a) : lawyer may not use means that “have no substantial purpose other than to embarrass, delay, or burden a third person…” The tactic of discrediting an honest witness, however, isn’t undertaken merely to embarrass or burden the witness but to make that witness’ testimony appear false. You can burden, humiliate, etc. a witness if it serves a substantial purpose By cross-examining guy who got mugged on whether he was trying to solicit prostitute, you are advancing your purpose (of trying to get client off) Harry I. Subin, The Criminal Defense Lawyer’s “Different Mission”: Reflections on the “Right” to Present a False Case [CB 717–19] o In Subin’s account of a rape and robbery case in which he represented the defendant, he reports that he considered cross-examining the complaining witness in an effort to raise doubts as to her credibility. Would it be proper for him to cross-examine the complainant in a manner that implies
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