Talking legal ethics over dinner | Maryland Daily Record

The ambiance of authorized follow is rightfully infused with moral guidelines and aspirations. The Guidelines of Skilled Conduct for Maryland attorneys are contained in Chapter 300 of the Maryland Guidelines. Some guidelines are broader than one would possibly assume and require affirmative motion by attorneys, whereas others are amplified by case legislation.

Allow us to contemplate the next dinner conversations (recorded with permission):

At a current bar affiliation dinner, Donald Johnson, Esq., talked about to Jane Richardson, a legislation professor, that he obtained in discovery a doc that opposing counsel would remorse. “It seems to have been protected by work product, and attorney-client privilege,” Donald defined. “Once I cross-examine counsel’s consumer at tomorrow’s deposition, counsel will remorse the oversight.”

“No so quick, Donald.” the professor mentioned. “Are you conversant in Md. Moral Rule 19-304.4: Respect for Rights of Third Events?”

“Not likely,” Donald replied.

“It’s possible you’ll wish to assume twice,” she mentioned. “Half (b) of the rule offers an legal professional who receives a doc regarding the illustration of the lawyer’s consumer, and is aware of or moderately ought to know that the doc was inadvertently despatched, shall promptly notify the sender.”

“Donald,” she continued, “you additionally ought to know that Md. Civil Process Rule 2-402 (e) (2) offers that if a celebration receives a doc that the occasion is aware of or moderately ought to know was inadvertently despatched, the occasion should promptly notify the sender. Part (4) states inadvertent disclosure doesn’t function as a waiver of privileged info, if the holder of the privilege made the disclosure inadvertently, took cheap steps to forestall disclosure, and took cheap immediate measures to rectify the error as soon as the holder knew or ought to have recognized of the disclosure. (See additionally Rule 26(b)(5)(B) FRCP).

“That rule additionally offers that if the opposing occasion responds to the discover by notifying the lawyer who obtained the doc that it’s privileged, and was inadvertently produced, the lawyer who obtained the doc should, amongst different issues, ‘return, sequester, or destroy the desired info.’”

“I suppose I ought to learn the principles,” mentioned Donald.

“Don’t learn them…Research them, and case legislation,” urged the professor.

Earlier than dessert was served, Donald raised one other matter. “I plan to fulfill with a witness in one other case,” he started. “I plan to advise him, when requested about some damaging info, to reply, ‘I don’t keep in mind.’ What do you assume?”

“Donald, is that this a joke?” exclaimed the professor. “You higher learn Md. Rule 19-303.4: Equity to Opposing Counsel and Lawyer, which prohibits an legal professional from falsifying proof, or counseling or helping a witness to testify falsely.

“If you happen to recommend — and even allow — your consumer, or any witness, to reply, ‘I don’t keep in mind,’ after they do, you might be committing an moral violation. Learn additionally Md. Rule 19-301.1: Competence. No competent lawyer would even contemplate advising a witness to testify falsely, which is precisely what you might be planning. See additionally Md. Rule 19-303.3: Candor Towards the Tribunal, and browse “Be Conscious of Moral Witness Preparation Guidelines,” N.Y.L.J., Might 25, 2000.”

Earlier than leaving, Donald requested the professor to overview an affidavit he ready for a witness to signal for submission in proof.

“Did you discuss with the witness about signing the affidavit?” she requested.

“Not but,”  he mentioned.

“What am I to do with you, Donald?” exclaimed the professor. “Attorneys have moral duties when interviewing and making ready witnesses. A number of guidelines could also be related, together with Mannequin Rule 19-303.3 (Candor Towards the Tribunal); Rule  19-303.4 (Equity to Opposing Occasion and Lawyer); and Rule 19-304.4 (Respect for Rights of Third Individuals). I recommend you chorus from displaying the affidavit to the witness till you might be certain the info within the proposed affidavit are true. Talk about the case with the witness. Ask questions in regards to the matter. Request the witness to signal the affidavit solely after the witness verifies the info are correct.”

“Donald, when you present the affidavit to the witness earlier than an interview, you could be giving the impression of injecting info that aren’t true. Furthermore, you possibly can look like telling the witness what to say, reasonably than asking the witness what she truly is aware of and remembers. However when you find yourself optimistic the info are true, a pre-scripted affidavit could also be correct.” (See, Restatement (Third) of The Legislation Governing Attorneys, §118, Remark (b)).

“And concerning pretrial witness preparation, Donald, the Courtroom of Appeals of Maryland said, ‘…[I]n the interviews with and examination of witnesses, out of courtroom, and earlier than the trial of the case, the …, {counsel} should train…warning… to extract and to not inject info, and by all means to withstand the temptation to affect or bias the testimony of the witnesses.’” (State v. Earp, 319 Md. 156, 170 (1990))

“Thanks, professor,” mentioned Donald, “I now recognize the significance of understanding each the moral guidelines and the case legislation that govern the conduct of attorneys.”

“Good luck, Donald,” mentioned the professor. “See you subsequent month.”

Paul Mark Sandler, trial lawyer and writer, could be reached at pms@shapirosher.com.