CAS Bar CAS Professional Responsibility and Ethics 3 — Questions and Answers
Question 1: A defense attorney learns before trial that their client intends to take the stand and testify falsely about a key alibi. What is the attorney's FIRST obligation?
- Immediately withdraw from the case without further discussion
- Disclose the plan to the prosecutor before the client testifies
- Counsel the client against testifying falsely and explain the legal and ethical consequences (Correct answer)
- Request a bench trial to minimize the impact of the anticipated false testimony
Correct answer: Counsel the client against testifying falsely and explain the legal and ethical consequences
Before taking any drastic action, the attorney must first attempt to persuade the client not to commit perjury, as required by California RPC 3.3 commentary.
Question 2: An attorney discovers after the close of evidence that their client submitted a forged contract to the court as a trial exhibit. The attorney must:
- Maintain client confidentiality and remain silent about the forged document
- Request a mistrial on unrelated grounds to avoid disclosing the fraud
- Take reasonable remedial measures, including disclosure to the tribunal if necessary (Correct answer)
- Notify only opposing counsel and allow them to raise the issue with the judge
Correct answer: Take reasonable remedial measures, including disclosure to the tribunal if necessary
Under California RPC 3.3(b), an attorney must take reasonable remedial measures when they know the client has offered false evidence, including disclosure to the tribunal if necessary.
Question 3: Opposing counsel accidentally sends an attorney a confidential email containing the opponent's complete trial strategy. Under Model Rule 4.4(b), the receiving attorney should:
- Use the information strategically if it would benefit the client
- Promptly notify the sender and follow their instructions regarding the inadvertently disclosed documents (Correct answer)
- Immediately delete the documents without reading further
- Submit the documents under seal to the court for safekeeping
Correct answer: Promptly notify the sender and follow their instructions regarding the inadvertently disclosed documents
Rule 4.4(b) requires prompt notification of the sender when a lawyer receives inadvertently disclosed documents relating to another party's representation.
Question 4: During settlement negotiations, an attorney tells opposing counsel that their client carries $500,000 in liability insurance coverage when the attorney knows the actual policy limit is $100,000. This conduct violates:
- No rule, because puffery and posturing are inherent in settlement negotiations
- The duty to maintain client confidentiality by revealing insurance information
- The prohibition on knowingly making false statements of material fact to a third person (Correct answer)
- The duty of loyalty to the attorney's own client
Correct answer: The prohibition on knowingly making false statements of material fact to a third person
ABA Model Rule 4.1(a) and California RPC 4.1 prohibit knowingly making a false statement of material fact to a third party, including opposing counsel during negotiations.
Question 5: An attorney files a motion for summary judgment knowing there is no factual or legal basis for it, with the primary purpose of burdening opposing counsel and driving up litigation costs. This conduct is:
- Permitted as an exercise of zealous advocacy on behalf of the client
- Prohibited under rules against frivolous claims and harassment of third parties (Correct answer)
- Only prohibited in federal court under FRCP Rule 11
- Permitted if the client specifically requested the motion in writing
Correct answer: Prohibited under rules against frivolous claims and harassment of third parties
California RPC 3.1 and 3.4 prohibit filing frivolous claims and engaging in dilatory tactics that burden or harass opposing parties.
Question 6: During a motion hearing, an attorney cites a case as supporting authority but knows it was expressly overruled by the same appellate court two months earlier. This primarily violates:
- Candor toward the tribunal by making a false statement of law to the court (Correct answer)
- The duty of competence by failing to research current case law
- The duty of communication by not informing the client of the adverse ruling
- The duty of confidentiality by revealing the attorney's legal research strategy
Correct answer: Candor toward the tribunal by making a false statement of law to the court
Citing overruled authority as valid precedent constitutes a false statement of law to the court, violating the duty of candor under California RPC 3.3(a)(1).
Question 7: Under the duty of candor to the tribunal, an attorney who discovers that directly adverse controlling authority has not been cited by opposing counsel must:
- Disclose that authority to the court even if it harms the client's position (Correct answer)
- Remain silent because disclosing adverse authority would breach the duty of loyalty
- Disclose only if the judge directly inquires about contrary authority during argument
- Inform only the client and let the client decide whether to disclose it voluntarily
Correct answer: Disclose that authority to the court even if it harms the client's position
California RPC 3.3(a)(2) requires an attorney to disclose directly adverse controlling authority that opposing counsel has failed to cite, regardless of how harmful it is to the client's case.
CAS Bar CAS Professional Responsibility and Ethics 3
A defense attorney learns before trial that their client intends to take the stand and testify falsely about a key alibi.
What is the attorney's FIRST obligation?