WEST 2017 Loser Score = East 1 (2014) West 3 (2015-17) Cpt. Cpt. - - PDF document

4/17/2018 1

Maria Jacob & Ken Troccoli, AFPDs (Alex.)

ETHICS

• Apr. 2018

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WEST

Loser Score = East 1 (2014) West 3 (2015-17)

2017

Cpt. Lisa Lorish Cpt. Megan Durkee

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DISCLOSURE & FAIRNESS Question 1

• Q. 1-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

• f 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 preliminary hearing (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.

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• Q. 1-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 Brady

requires 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.

QUESTION 1-E (1 POINT)

At the time Prolific Prosecutor extends the plea

• ffer, 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.

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• Q. 1 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

• ffense, or reduce the punishment, except

when disclosure is precluded or modified by

• rder of a court.”

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• Q. 1 ANSWERS
• LEO 1862 (2012) states that the duty of timely

disclosure of exculpatory evidence under R. 3.8(d) requires “earlier disclosure than the Brady standard.” Timely = “occurring at a suitable or opportune time

• r 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. 1 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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THROWING CLIENT UNDER THE BUS & CANDOR TO THE TRIBUNAL - QUESTION 2

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• Q. 2-W (1 POINT)

Your client is pending a supervised release violation hearing. He has had 2 prior SRV Petitions/hearings and has a track record for failing to appear for the prior hearings which resulted in bench warrants being issued. You called the client once you recd the present (3rd) SRV Petition and informed him of the hearing date/time. Since that initial call, you have tried multiple times, w/o success, to reach your client. He has not returned your calls. On the day of the hearing your client does not appear and the judge asks you whether you have been in touch with your client.

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• Q. 2–W (1 PT.)
• A. Yes, I have been in touch with him.
• B. Yes, I have been in touch with him and I

told him of the court date.

• C. Yes, but I believe he has a good reason

for not being here today.

• D. I have no representations to make at this

time.

• E. All of the above are permitted under the

Rules.

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Which of the following responses are permitted under the Rules?

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• Q. 2-E (1 POINT)

30 minutes before the hearing, your client calls you and says that he is ill with a severe “upset stomach” and unable to attend the

• hearing. He instructs you to ask the Court for a
• continuance. You are concerned because he

gave the same reason (illness) for his failures to appear at his prior SRV hearings. You do not have time to investigate your client’s current claim of illness. When you appear before the judge 30 minutes later, the judge asks you whether you have been in touch with your client.

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Additional Facts

• Q. 2–E (1 PT.)
• A. Yes, I have been in touch with him and I

told him of the court date.

• B. Yes, and he has told me that he can’t

attend today due to illness.

• C. Yes, but I believe he has a good reason

for not being here today.

• D. I have no representations to make at this

time.

• E. Both B and C.

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Which of the following responses are permitted under the Rules?

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Q.2 -- APPLICABLE RULES

• RPC 1.6 (Confidentiality of Information): counsel

must maintain confidences/secrets including info that “would be embarrassing or would be likely to be detrimental to the client unless the client consents.”

• Rule also permits disclosures that are “impliedly

authorized in order to carry out the representation.”

• RPC 3.3 (Candor Toward the Tribunal): counsel has

a duty to “not knowingly . . . make a false statement

• f fact or law to a tribunal.”
• RPC 1.3 (Diligence): counsel has duty to diligently

represent a client and to not “intentionally prejudice

• r damage” a client except as permitted under Rs.

1.6 and 3.3.

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BAD ANSWERS

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2.W SCENARIO: NO CONTACT WITH CLIENT

GOOD ANSWER

• A. Yes, I have been in touch with

him.

• B. Yes, I have been in touch with

him and I told him of the court date.

• C. Yes, but I believe he has a good

reason for not being here today. Violates 1.6 bc reveals to ct that client has been informed of the court date and/or imply that client has no good cause for his FTA. Violates 3.3 bc atty doesn’t have enough info to make this stmt.

• D. I have no representations.

Doesn’t reveal client info, minimizes harm to client & is truthful.

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BAD ANSWERS

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2.E SCENARIO: CLIENT SAYS HE’S ILL

GOOD ANSWER

• A. Yes, I have been in touch with

him and I told him of the court date.

• C. Yes, but I believe he has a good

reason for not being here today.

• D. I have no representations.

A & D violate R. 1.3 bc not diligently representing client. C violates 3.3 bc it may not be factually accurate.

• B. Yes, and he has told

me that he can’t attend today due to illness. Truthful, and disclosure is explicitly or impliedly authorized so as to diligently represent client.

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

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Polltogo http://p2.gg/zi4

AUDIENCE PARTICIPATION 5 Points

• Qs. 3A - C

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You are STILL representing Olivia Outlaw, who, in the middle of her trial, entered a guilty plea to a charge that she unlawfully sold a firearm (a gold-colored Glock) to a convicted felon. As part of her plea agreement, Outlaw has promised to cooperate and provide information to AUSA Bigge Cahones about the name of the Bad Hombre who provided Outlaw with the Glock. Cahones also wants to know what Outlaw has been doing with the Glock.

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You have high hopes for a successful debrief. You have prepared Outlaw thoroughly and she has told you that she got the Glock from her cousin, Nate R. Army (aka NRA). She also has given you details on other firearms that she has

• btained from NRA and then sold. Outlaw has

also told you that she used the Glock to rob a drug dealer of his cash. She says that her Facebook page, which your investigator has seen, has a photo of NRA holding the Glock right before he sold it to her.

NRA “I love the 2d Amendment!”

• Qs. 3A-C

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The Plea Agreement contains the standard language requiring Outlaw’s cooperation to be truthful and complete. It also contains the standard provision granting immunity for any truthful information provided pursuant to the Agreement except for information concerning “a crime of violence or conspiracy to commit a crime of violence.”

I’m Snitching!

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• Q. 3 (5 Pts. Total)
• A. “I found the Glock in a dumpster. I don’t

know anyone by the name of Nate R. Army.”

• B. “Ms. Outlaw, we have information that you

used the Glock to rob a guy dealing drugs. What can you tell us about this?”

• C. “Tell my sister to delete my Facebook

account!”

23 Relevant Rules:

• R. 4.1 (Truthfulness in Statements to Others):

lawyer shall not “fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.” – Includes a knowing failure to correct false statements.

• R. 3.4(c) (Fairness to Opposing Party):

prohibits an atty from assisting a witness to testify falsely.

• R. 3.3(a)(4) (Candor Toward the Tribunal): “A

lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false.”

Do Nothing Or Vouch for Client BAD DECISION

24 3.A. “I FOUND THE GLOCK IN A DUMPSTER. I DON’T KNOW ANYONE BY THE NAME OF NATE R. ARMY .”

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Relevant Rules:

• 1.2(c) (Scope of Representation):

representation does not include assisting a client “in conduct that the lawyer knows is criminal or fraudulent.”

• 1.2(d) (Scope of Representation):

when lawyer knows client expects assistance not permitted by Rules, the “lawyer shall consult with the client.”

• R. 1.6(c) (Confidentiality): atty must

take appropriate remedial measures if client commits perjury.

Call a Time-Out! Or Correct Client During Questioning (less preferable) GOOD DECISION

25 3.A. “I FOUND THE GLOCK IN A DUMPSTER. I DON’T KNOW ANYONE BY THE NAME OF NATE R. ARMY .”

Client’s Lies – What to Do:

• 1. Persuade client not to do it.
• - Doubts about veracity should be resolved in favor of

client, ”but the lawyer cannot ignore an obvious falsehood.”

• R. 3.3 cmt 8.
• 2. If that fails, end the debrief and potentially 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. As between duties of Confidentiality (1.6) and

Truthfulness (4.1), the latter controls bc otherwise the atty becomes “a knowing instrument of perjury.”

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Rule 1: NEVER BECOME A CLIENT!

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Relevant Rules:

• R. 1.3 (Diligence): a lawyer should

“act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”

• R. 1.2(d) (Scope of Representation):

a lawyer may take such action as is “impliedly authorized to carry out the representation.” Do Nothing BAD DECISION

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3.B. “WHAT CAN YOU TELL US ABOUT USING THE GUN TO COMMIT A ROBBERY?”

GOOD DECISION Instruct client to not answer

Since client’s answer is not covered by immunity language in PA, a revision of PA is necessary before client should answer. Relevant Rules:

• R. 3.4 (Fairness to Opposing Party): “A

lawyer shall not . . . obstruct another party’s access to evidence or alter, destroy or conceal a document or other material having potential evidentiary value” or “counsel or assist another person to do any such act.” – “Opposing Party” includes the Govt.

• Cmt. 1.
• 1.2(c) (Scope of Representation): does not

include assisting a client “in conduct that the lawyer knows is criminal or fraudulent.”

• 8.4 (Misconduct): prohibits atty from

engaging in dishonesty, fraud or deceit or assist another person in violating the Rules).

“No Problemo!” BAD DECISION

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3.C. “TELL MY SISTER TO DELETE MY FACEBOOK ACCOUNT!

GOOD DECISION Don’t do it. Rule 2: See Rule 1

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Polltogo http://p2.gg/zi4

AUDIENCE PTS. = 5

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CLIENT FILES QUESTION 4

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• Q. 4-W (1 pt.)

You represented a retained client in a complex white-collar fraud case. Your client entered a guilty plea and is now serving a lengthy prison term and your representation of her has ended. You have already returned to her all original, client- furnished materials, but now she has written to you requesting a complete copy of the remainder of her “file.”

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• Q. 4-W (1 POINT)

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May you condition the release of the client’s file upon payment of copying fees?

• A. Yes.
• B. No, but you may bill and seek to collect

from the client the costs associated with making a copy of the materials.

• C. No, and you may not bill and seek to

collect from the client the costs associated with making a copy of the materials.

• D. None of the above.

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• Q. 4-E (1 POINT)

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Are you required to provide attorney work product?

• A. No.
• B. Yes, but you may bill and seek to collect

from the client the costs associated with making a copy of the materials.

• C. Yes, and you may not bill and seek to

collect from the client the costs associated with making a copy of the materials.

• D. None of the above.
• Q. 4 - APPLICABLE RULES
• RPC 1.16(e) (Terminating Representation): requires

that client is entitled to return of her file upon termination

• f representation.
• All original, client-furnished documents and any
• riginals of legal instruments shall be returned upon

request and atty must bear cost of duplication if atty wants to keep a duplicate.

• The client can be charged a reasonable copying

fee for duplicating other material in the file.

• Under no circumstances however can an atty refuse to

deliver the material until the copying fee has been

• paid. Nor may atty w/hold the file if the client is

unwilling or unable to pay the costs.

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• Q. 4 - APPLICABLE RULES
• RPC 1.16 defines the client’s file as:
• All original, client-furnished documents and any
• riginals of legal instruments/official docs;
• Atty/client & atty/3rd party communications;
• Transcripts, pleadings & discovery responses;
• Working/final drafts of legal instruments;
• Investigative reports, legal memos, & other attorney

work product;

• Research materials;
• Bills submitted to client.

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• Q. 4 - APPLICABLE RULES
• What constitutes “Attorney Work Product”?
• “Everything prepared by the attorney for the client in

the course of the representation, other than those items originally provided by the client, whether in tangible documentary form or through the intangible provision of the attorney’s expertise, to include working copies, preliminary drafts, notes, final documents, and anything else placed in the file by the attorney.” (From the most recent VA Bar Professionalism Course); see also LEO 1366.

• Duty to provide the file does not include disclosure of

materials (e.g. PSR) where the disclosure is prohibited by law. R. 1.16 cmt. 11; LEO 1790.

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PLEA BARGAINING - Q. 5.

• Q. 5 (1 pt.)

Pernicious Prosecutor and Diligent Defense Counsel (that would be you) are discussing the terms of plea agreement. PP provides to DDC the plea agreement which contains the following language: “I waive any right I may have to collaterally attack, in any future proceeding, any order issued in this matter and agree that I will not file any document that seeks to disturb any such order.” PP says this language is now standard language for all plea agreements.

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• Q. 5-W

Is it ethical for Pernicious Prosecutor to require this waiver as a term of the plea agreement? A. Yes B. No

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“I waive any right I may have to collaterally attack, in any future proceeding, any order issued in this matter and agree that I will not file any document that seeks to disturb any such order.”

• Q. 5-E

Is it proper for Diligent Defense Counsel to advise his client regarding whether to agree to this provision? A. Yes B. No

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“I waive any right I may have to collaterally attack, in any future proceeding, any order issued in this matter and agree that I will not file any document that seeks to disturb any such order.”

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• Q. 5 - APPLICABLE RULES
• Federal Courts have consistently held that such a

provision is legally enforceable against the

• defendant. See U.S. v. Lemaster, 403 F.3d 216, 220

(4th Cir. 2005) (provision is valid as long as the waiver of rights was knowing and voluntary).

• However, from an ethical standpoint, it is a

violation of the RPC for defense counsel to counsel his client re whether to accept that provision.

• LEO 1857 (2011) states both Rs.

1.7(a)(2) (Conflict of Interest) & R. 1.3(c) (Diligence) are violated bc there is a concurrent conflict of interest btwn the atty’s personal interests and the client’s right to diligent representation.

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• Q. 5 - APPLICABLE RULES
• LEO 1857 also found that, it is a violation of R.

8.4(a) (Misconduct) for the Prosecutor to insist on this language bc he is implicitly requesting that DDC counsel his client to accept this provision, which is an inducement to DDC to violate Rs. 1.3(c) and 1.7.

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8.4(a) It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

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JUDICIAL CRITICISM Question 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

• fficial.”

Yes No

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4/17/2018 24

• 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.”

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

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