Advocacy Flashcards

An attorney representing a client in a civil case learns mid-trial that a key legal theory in her brief is based on a case that was subsequently overruled. She has not yet cited the case in oral argument. What must she do under Rule 3.3?

Answer: Inform the court that the authority she cited in her brief has been overruled

Rule 3.3(a)(1) prohibits knowingly making false statements of law to a tribunal; once an attorney knows cited authority is overruled, she must correct the record.

Under Rule 3.5, which of the following is the ONLY permissible communication with a sitting juror during trial?

Answer: A brief greeting in passing in a courthouse corridor

Rule 3.5(b) prohibits attorneys from communicating with jurors about the case; incidental, non-case-related exchanges (like a greeting) are the only contacts that do not violate the rule.

A plaintiff's attorney obtains a court order compelling production of documents. The opposing party's attorney advises her client to destroy documents subject to the order before they are produced. This violates:

Answer: Rule 3.4(a) and possibly criminal obstruction laws

Rule 3.4(a) prohibits unlawfully altering, destroying, or concealing evidence, and advising a client to destroy court-ordered documents also likely constitutes criminal obstruction.

Under Rule 3.6, which of the following statements about a pending criminal case would NOT be subject to the trial publicity restrictions?

Answer: A statement that the case involves allegations of embezzlement

Rule 3.6(b)(1) explicitly permits a lawyer to state the general nature of the claim or defense, which includes describing the general type of case without revealing prejudicial details.

A criminal defense attorney learns that her client has secretly paid the prosecution's main witness to testify falsely. The attorney was not involved in the scheme. She must:

Answer: Take reasonable remedial measures under Rule 3.3, including possible disclosure to the tribunal

Rule 3.3(b) requires an attorney who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to a proceeding to take reasonable remedial measures.

An attorney is asked to represent a client in a legislative hearing before a state assembly committee. Under Rule 3.9, which Rule 3.3 duty does NOT apply to this nonadjudicative proceeding?

Answer: The duty to disclose directly adverse controlling legal authority

Rule 3.9 applies Rules 3.3(a)–(c) and (b) but not 3.3(a)(2), because the duty to cite adverse controlling authority is specific to adjudicative proceedings before courts.

A prosecutor obtains a confession that she believes is true but knows was obtained in violation of the defendant's Fourth Amendment rights. Under Rule 3.8, the prosecutor should:

Answer: Refrain from using evidence she knows was obtained in violation of the defendant's legal rights

Rule 3.8(a) prohibits a prosecutor from pursuing charges or using evidence the prosecutor knows was obtained in violation of the accused's constitutional or legal rights.