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Maria Jacob & Ken Troccoli, AFPDs (Alex.)

ETHICS

2WEST

Loser Score = East 1 (2014)

West 2 (2015-16)

2016

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UNDISCLOSED RECORDINGQuestion 1

Q. 1-W (1 POINT)

You represent Taylor Swift who is charged with battery with a deadly weapon in VA for allegedly scratching Kim Khardashian with her diamond ring after a conversation between the two gets out of hand at the Dulles Airport. Taylor tells you that she wants to secretly record her conversation with Kim the next time they talk to see if she can get some “dirt” on her that would be useful for her defense. Kim (the “victim”) also has pending a civil suit against your client for slander arising out of the same incident. Kim is represented by an atty in the slander action. 4

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Q. 1–W (1 PT.)

A. No, this would violate the RPC.

B. Yes, so long as the recording is not used to embarrass or violate the legal rights of Kim.

C. Yes, because VA allows one party consent recordings.

D. Yes, because Rule 1.2(c) only forbids a lawyer from counseling or assisting the client in conduct that is illegal or fraudulent.

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Can you advise your client Taylor to engage in this undisclosed recording in VA?

Q. 1–E (1 PT.)

A. No, this would still violate the RPC.

B. Yes, because Kim is unrepresented.

C. Yes, because VA allows one party consent recordings.

D. Yes, because Rule 1.2(c) only forbids a lawyer from counseling or assisting the client in conduct that is illegal or fraudulent.

6Assume Kim (the “victim”) is not represented by counsel. Can you advise Taylor to engage in this undisclosed recording in VA?

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SURREPTITIOUS RECORDINGS

● LEO 1802 (2010): not a violation of the RPC for an atty in a civil matter to advise client that ok to LAWFULLY record her own conversations with father bc latter was unrepresented & recording was done for legitimate purpose (to prove he had molested her).

● RPC 4.2 Communication with Persons Represented by Counsel): atty (by herself or thru an agent) can’t communicate about the subject of the representation with a person the atty knows is represented by an atty unless that atty consents.

-- LEO 1802 dealt with unrepresented party.

7● RPC 4.4 (Respect for Rights of Third Persons): prohibits any means of obtaining evidence that violates a 3rd party’s legal rights or has no substantial purpose other than to embarrass, delay, or burden a 3rd person.

-- Here, Taylor simply wants to record a conversation in the hopes of obtaining “dirt” which may or may not even be relevant to the defense and might have the purpose of embarrassing Kim.

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SURREPTITIOUS RECORDINGS

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FILE RETENTIONQuestion 2

Q. 2–W (1 PT.)

How long does a VA atty need to retain all of a client’s closed criminal case file?

A. Indefinitely.

B. 5 years after case is closed.

C. 10 years after case is closed.

D. None of the above.

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Q. 2– E (1 PT.)According to the guidelines on file retention, it is recommended that the following client file materials be preserved indefinitely:

A. Files of “problem” clients.

B. Files of clients convicted of a capital crime.

C. Original documents or other property of the client.

D. Materials that the atty should know may still be necessary or useful in the client’s matter.

E. All of the above. 11

File Retention Guidelines

● Gen Rule = “a lawyer does not have a general duty to preserve indefinitely all closed or retired files.” LEO 1305 (1989).

● Except for trust accounts records, RPC don’t specify how long files shld be retained.

- Trust Acct Recs = 5 calendar yrs. R. 1.15(c)(4)

● Reasonable means shld be used to notify client before any files are discarded (so client can claim them) and an Index of the destroyed files shld be preserved.

● Files shld’nt be destroyed so quickly as to violate gen duty of R. 1.16 (Termination of Representation).12

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Recommendation = Don’t Destroy

● Original docs or other client property.

● Materials atty shld know may still be necessary/useful in client’s matter for which statute of limitations has not expired or which may not be readily available to client thru another source.

● Materials the client may need, and that haven’t previously been provided to the client and which the client may reasonably expect will be preserved.

● Files of “problem” clients or

clients convicted of capital offense. 13

File Retention Policies

• Draft a retention policy for your law office and include it with the client’s engagement letter.

• Malpractice insurance carrier shld be consulted:– 10 yr retention period is common or in criminal

cases 7 yrs after all appeals have expired.

– 20 yrs or longer for wills/real estate matters.

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Method of destruction shld preserve client confidentiality (R. 1.6).

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Role Play (Q. 3)U.S. v. Olivia Outlaw

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Polltogohttp://p2.gg/2hf

AUDIENCE PTS. = 3

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Qs. 3A - C

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You represent Olivia Outlaw who is in the middle of her jury trial on a charge that she unlawfully sold a firearm to a convicted felon (a confidential informant). The trial is not going well for Outlaw bc the Govt’s evidence presented thus far includes the unimpeached testimony of the CI and video/audio recordings on which Outlaw is clearly heard to say to the CI, “Dude, I know you’re a convicted felon, but please do me a solid & buy this handgun bc I really need the money to pay back a debt I owe to some bad hombres.”

Qs. 3A-C

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You thoroughly investigated the case and found no evidence to support a duress or entrapment defense. During trial prep, Outlaw agreed that she would not testify because she told you that she DID voluntarily sell the gun to the CI for money knowing that he was a convicted felon. After the first day of trial (before the Govt has rested), you get an urgent call from the jail that Outlaw wants to see you asap.

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Q. 3 (2 Pts. Each)A. I’m going to testify and falsely say that during

the sale, the CI had a knife under his coat that he stuck in my ribs and forced me to sell him the gun or he would stab me. And I want your help in putting me on the stand to say this.

B. I want you to subpoena my GF and call her as a witness. She will falsely say that the CI threatened to kill her if I didn’t sell him the gun. Will you do that for me?

C. I agree that my GF shouldn’t testify, but as your client, I am ordering you to argue to the court that as a “sovereign citizen” the court has no authority over me. Will you do that for me? 19

Relevant Rules:• R. 3.3(a)(4) (Candor

Toward the Tribunal): “A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false.”

• R. 1.6 (Confidentiality): w/o consent, a lawyer shall not reveal confidential information, e.g., info that is “embarrassing” or “detrimental” to the client.

“No problem! I will help you!

BAD ANSWER

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A. “I WANT YOUR HELP PUTTING ME ON THE STAND [TO LIE]”

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Relevant Rules:

• Effective Dec. 1, 2016, Rs. 1.6 and 3.3 have been amended to address the obligations of an atty when client says he will commit perjury. Previously, this issue was addressed in both rules, now only in 3.3.

• Atty must “know” client will present false testimony. Suspicion is not enough given client’s right to testify.

“While you do have a right to testify and I can’t prevent you from testifying, you do not have a right to have your attyassist you in presenting false testimony.”

GOOD ANSWER

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A. “I WANT YOUR HELP PUTTING ME ON THE STAND [TO LIE]”

Client Perjury – What to Do:1. Persuade client not to do it.

2. If that fails, move to withdraw under 1.16 (Termination of Representation)

-- 1.16(a)(1): atty shall w/d if “the representation will result in violation of the RPC.”

3. If that fails, atty “must reveal the client’s perjury” to the court. R. 3.3 cmt. 13b; LEO 542 (1984).

-- i.e., as btwn duties of Confidentiality (1.6) and Candor Toward Tribunal (3.3), the latter controls bc otherwise the atty becomes “a knowing instrument of perjury.”

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Rules specifically reject two other common approaches: (a) narrative approach, and (b) excusing atty entirely from revealing perjury.

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Relevant Rules:

• R. 3.3 (Candor Toward Tribunal)

• R. 8.4 (Misconduct): “It is professional misconduct for a lawyer to . . . knowingly assist . . . another” to violate the RPC.

• R. 1.2 (Scope of Representation)

“No problem! I will send her a subpoena ASAP!

BAD ANSWER

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B. “I WANT YOUR HELP PUTTING MY BF ON THE STAND [TO LIE]”

GOOD ANSWER

No!

RPC treats false evidence differently than client perjury since client has right to testify & w/client perjury remedial measures are only required if atty “knows” of the perjury.

False Evidence – What to Do:1. Don’t offer it if atty “knows” it is false.

-- Like client perjury, atty may not “knowingly” offer any false evidence. R. 3.3(a)(4).

-- Doubts about veracity shld be resolved in favor of client, ”but the lawyer cannot ignore an obvious falsehood.” R. 3.3 cmt 8.

2. May refuse to offer it if atty “reasonably believes” it is false. R. 3.3(b).

3. May refuse to offer it for any legitimate tactical reason so long as atty consults with client about it. R. 1.2 (Scope) & 1.4 (Communication). 24

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Relevant Rules:• R. 3.1 (Meritorious Claims &

Contentions): “A lawyer shall not . . . assert or controvert an issue unless there is a basis for doing so that is not frivolous.”– E.g. good faith arg for extension,

modification or reversal of existing law.

– What is “frivolous” is an objective test.

• R. 1.2 (Scope of Representation): “A lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued.” 1.2(a).

“I will do whatever you say!”

BAD ANSWER

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C. “I ORDER YOU TO ARGUE THAT I AM A “SOVEREIGN CITIZEN”

GOOD ANSWER

“Not unless there is a good faith basis for the argument.”

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Polltogohttp://p2.gg/2hf

AUDIENCE PTS. = 3

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CONFIDENTIALITY & CANDORQuestion 4

Q. 4-W (1 POINT)Drug kingpin Pablo Escobar is angry. He is facing trial in the WD VA and he just learned that his long-time bad hombre associate (“BHA”) is going to testify for the feds. Pablo tells his VA atty (you) that he is going to ask a friend to hack into BHA’s bank account and withdraw all of his money. “That should send the message that he should keep his mouth shut” Pablo tells you.

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Q. 4– W (1 PT.)Which of the following, if taken by Pablo’s atty, would be a violation of R. 1.6 (Confidentiality of Information)?

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A. Immediately revealing Pablo’s intentions to the authorities.

B. Trying to talk Pablo out of this scheme and if that fails, revealing his intentions to the authorities.

C. Telling Pablo that if he doesn’t abandon this scheme, his atty will be forced to tell the authorities.

D. All of the above would violate R. 1.6.

Q. 4-E (1 POINT)While investigating Pablo’s case, you become convinced that the Govt’s drug analyst has falsified her lab report to indicate a purity of cocaine that is higher than what you think it is. However, you have no evidence to support this suspicion. At trial, you hold up a (blank) piece of paper and ask the analyst, “isn’t it true that the original of your report states that the cocaine has a lower level of purity than what you are now saying it has?” The analyst then admits that she falsified her report. 30

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Q. 4– E (1 PT.)Is your conduct unethical?

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A. Yes, because you implied that you had the original report by holding the piece of paper up while questioning the analyst.

B. No.C. No, unless you actually move to admit the

piece of paper into evidence.D. No, because the Federal Rules of

Evidence allow admission of extrinsic evidence of a prior inconsistent statement.

● Revised R. 1.6(c) (Eff. 12-1-16) requires atty to promptly reveal “the intention of a client, as stated by the client to commit a crime reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another and the information necessary to prevent the crime.”

-- Prior version included any crime, no matter how minor.

-- Still must 1st advise client not to do it & that atty must report him if he persists.

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Q. 4 ANSWERS - RELEVANT RULES

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● R. 3.4(f) prohibits an atty in trial from “allud[ing] to “any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.”

-- must have good faith belief & be prepared to proffer the basis for that belief if necessary.

-- holding up blank piece of paper creates false impression that atty has the original report.

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Q. 4 ANSWERS – RELEVANT RULES

DISCLOSURE & FAIRNESSQuestion 5

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Q. 5-W (1 POINT)Prolific Prosecutor has charged your client

with a felony assault based upon the victim’s stmt. Client claims it is a case of mistaken id. PP is aware of a cooperating witness’ (CW) stmt stating that client wasn’t involved in the assault. PP also is aware that the only eyewitness (other than the combatants) has died.

Before the prelim (which is pending), PP offers a plea bargain to client to plead guilty to a misdemeanor with no jail time. The deadline for accepting the offer is the day before the prelim. PP hasn’t disclosed any of the exculpatory info as he believes Brady doesn’t require disclosure at this time. 35Q. 5-W (1 POINT)Is the failure of the prosecutor to disclose the existence of the exculpatory evidence a violation of the RPC?

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A. No, because disclosure under Bradyrequires that the evidence be disclosed in time for it to be effectively used at trial.

B. No, because defense counsel has not yet asked to see the exculpatory evidence.

C. No, unless the prosecutor obstructs access to the evidence.

D. Likely yes.

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QUESTION 5-E (1 POINT)At the time Prolific Prosecutor extends the plea offer, he tells defense counsel of the exculpatory evidence but PP also says that he has requested the govt’s witnesses to not speak with defense counsel. Have the RPC been violated?

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A. No, because the RPC only prohibit “obstructing” a party’s access to evidence and here, PP only requested that they not talk.B. No, unless PP misrepresents a material fact.C. No, unless the witness defense counsel wants to speak with has “material” information.D. Yes.

Q. 5 ANSWERS● Brady standard: prosecutor has legal (Due Process) obligation to disclose material exculpatory evidence in time for the D to make effective use of it at trial.

● RPC 3.8(d) (Responsibilities of a Prosecutor):

Prosecutor must “make timely disclosure” to defense counsel of the existence of evidence that “the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court.”

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Q. 5 ANSWERS● LEO 1862 (2012) states that the duty of timely disclosure of exculpatory evidence under R. 3.8(d) requires “earlier disclosure than the Bradystandard.”

Timely = “occurring at a suitable or opportune time or coming early or at the right time.”

• “Thus, a timely disclosure is one that is made as soon as practicable considering all the facts and circumstances of the case.”

• Duty of timely disclosure is violated when the prosecutor “intentionally delays making the disclosure without lawful justification or good cause.”

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Q. 5 ANSWERS - FAIRNESS

● R. 3.4 (Fairness to Opposing Party & Counsel)

A lawyer shall not:

“obstruct” a party’s access to evidence or “counsel or assist another person to do so. R. 3.4(a).

“request a person other than a client to refrain from voluntarily giving relevant information to another party.” R. 3.4(h).

Limitation in 3.4 doesn’t apply in civil cases.

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JUDICIAL CRITICISMQuestion 6

Q. 6-W (1 PT.)An attorney makes the following statements to the Court in support of the attorney’s motion for the judge to recuse himself:

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Q. 6-W (CONT.)● “I don’t feel that you’re appropriate to hear any cases that I might be defending.”

● “It makes me feel uncomfortable for you to hear any jury trial against any of my clients.”

● “I believe you harbor animosity toward me and that you will treat my client unfairly.”

● “I believe that you are biased for the government in criminal cases.”

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Q. 6-W (CONT.)Do these statements violate RPC 8.2 (Judicial Officials) which states that : “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or other judicial official.”

Yes

No

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Q. 6–E (1 POINT)Which of the following is the rationale for RPC 8.2 (Judicial Officials):

A. Members of the public may give great weight to lawyer criticism of judges.

B. Judges are constrained from public response to criticism.

C. Lawyers are assumed to have special knowledge about the quality of the legal system.

D. All of the above.

E. A & B only.

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VA STATE BAR V. CURTIS BROWN(NO. CL09-5166, 12-18-09)

● Atty represented criminal D in Norf. Cir. Ct.

● On day of jury trial, CB made above comments in support of his oral motion for judge to recuse himself. (Atty had prior history with the judge stemming from when judge was Commonwealth’s Atty.)

● Judge granted recusal motion, resulting in delay of trial.

● 3-judge disciplinary court unanimously found that CB violated Rs. 8.2 and 3.5 (Impartiality and Decorum of the Tribunal) (“A lawyer shall not engage in conduct intended to disrupt a tribunal.”).

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PROFESSIONALISM COURSE:

Judicial Criticism● “A lawyer should demonstrate respect for the legal system and for those who serve it . . . “ While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”

● Lawyers are “assumed to have special knowledge about the quality of the legal system . . . [and] consequently the assessments of lawyers may carry disproportionate weight.”

● Moreover “judges are constrained from public response . . . out of a proper concern not to involve judges in public controversy.” 47

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BONUS QUESTIONIdentify these ethically-challenged persons:(7 possible pts.)

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Bridgegate