Candor, Fairness and Duties to the Tribunal and Third Parties: every key term you need (+ practice quiz)
25 flashcard terms for Professional Responsibility Topic 7, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
Model Rule 3.1 forbids bringing or defending a proceeding without a basis in law and fact that is not frivolous, though a good faith argument for extending, modifying, or reversing existing law is proper.
Criminal defense exception to Model Rule 3.1
Defense counsel in a criminal case, or in any case that could result in incarceration, may put the prosecution to its proof and require that every element be established even without an affirmative defense theory.
Expediting litigation
Model Rule 3.2 requires reasonable efforts to expedite litigation consistent with the client's interests, so delay tactics adopted purely to frustrate an opponent or to increase fees are improper.
Candor toward the tribunal
Model Rule 3.3 forbids knowingly making a false statement of fact or law to a tribunal and requires correcting a previously made false statement of material fact or law the lawyer has since learned was false.
Disclosing adverse legal authority
A lawyer must disclose controlling authority in the jurisdiction directly adverse to the client's position when opposing counsel has not, though the lawyer may distinguish or criticize the authority.
False evidence and remedial measures
If a lawyer offers material evidence and later learns it was false, she must take reasonable remedial measures, remonstrating with the client first, then seeking to withdraw, and finally disclosing to the tribunal if necessary.
Refusing to offer evidence
A lawyer may refuse to offer evidence she reasonably believes is false, other than the testimony of a criminal defendant, whose constitutional right to testify limits the lawyer's ability to block the testimony outright.
Client perjury in a criminal case
When a criminal defendant insists on testifying falsely, prevailing practice is to counsel against it, seek withdrawal if possible, and if compelled to proceed, to take remedial action which may include disclosure to the court.
Duration of the candor duty
The duties under Model Rule 3.3 continue to the conclusion of the proceeding, which includes the time for appeal, and they apply even if compliance requires disclosing confidential information.
Ex parte proceedings
In a proceeding where the opposing party is absent, such as a temporary restraining order application, the lawyer must inform the tribunal of all material facts known to her, including facts adverse to her client.
Fairness to opposing party and counsel
Model Rule 3.4 forbids unlawfully obstructing access to evidence, altering or destroying documents or other material having potential evidentiary value, and counseling or assisting another person to do so.
Falsifying evidence and witness payments
A lawyer may not falsify evidence or induce a witness to testify falsely, and may not offer an improper inducement, though paying a witness reasonable expenses, lost time compensation, and lawful expert fees is permitted.
Asking a witness to withhold information
Model Rule 3.4(f) forbids requesting a person to refrain from voluntarily giving information to another party, unless the person is a relative, employee, or agent of the client and the lawyer reasonably believes their interests will not be harmed.
Personal opinion at trial
A lawyer may not assert personal knowledge of contested facts except when testifying as a witness, and may not vouch by stating a personal opinion about the justness of a cause, a witness's credibility, or a defendant's guilt.
Compliance with discovery obligations
Frivolous discovery requests and a failure to make a reasonably diligent effort to answer a proper discovery request violate Model Rule 3.4(d), independent of any court sanction.
Impartiality of the tribunal
Model Rule 3.5 forbids seeking to influence a judge, juror, or official by prohibited means, forbids ex parte communication during a proceeding unless authorized, and forbids conduct intended to disrupt a tribunal.
Post-verdict juror contact
A lawyer may not communicate with a discharged juror if the court forbids it, if the juror has made known a desire not to communicate, or if the communication involves misrepresentation, coercion, duress, or harassment.
Trial publicity
Model Rule 3.6 bars an extrajudicial statement the lawyer knows or should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
Safe harbor and right of reply
A lawyer may state the claim or defense, the information in a public record, the fact that an investigation is ongoing, scheduling, and warnings of danger, and may make a statement reasonably required to protect a client from recent adverse publicity not of the client's making.
Lawyer as witness
Model Rule 3.7 bars a lawyer from acting as advocate at a trial where she is likely a necessary witness, except on an uncontested issue, on the nature and value of legal services, or where disqualification would cause substantial hardship to the client.
Special responsibilities of a prosecutor
Model Rule 3.8 requires probable cause for charges, reasonable efforts to assure the accused knows of the right to counsel, timely disclosure of exculpatory and mitigating evidence, and restraint from extrajudicial comments heightening public condemnation.
Post-conviction exculpatory evidence
A prosecutor who learns of new credible and material evidence suggesting a convicted defendant is innocent must disclose it and, when the conviction is in her jurisdiction, investigate; clear and convincing proof of innocence requires seeking to remedy the conviction.
Truthfulness to third parties
Model Rule 4.1 forbids knowingly making a false statement of material fact or law to a third person and forbids failing to disclose a material fact when necessary to avoid assisting a client crime or fraud, unless Model Rule 1.6 forbids disclosure.
Negotiation puffery
Estimates of price or value placed on a subject and a party's intentions about settlement are conventionally not treated as statements of material fact, so ordinary posturing in negotiation does not violate Model Rule 4.1.
No-contact rule and unrepresented persons
Model Rule 4.2 forbids communicating about the subject of the representation with a person known to be represented by counsel absent consent or legal authorization, and Model Rule 4.3 requires correcting an unrepresented person's misunderstanding of the lawyer's role and forbids giving them advice other than to obtain counsel.