Duties to the Tribunal and Third Parties

⚖️ Duties to the Tribunal and Third Parties

Master the ethical rules governing courtroom conduct and interactions with non-clients using free flashcards and spaced repetition. This lesson covers candor toward tribunals, fairness to opposing parties, trial publicity restrictions, and duties when dealing with represented and unrepresented persons—essential concepts for passing the MPRE and practicing ethically.

Welcome to Lesson 3

As you advance in professional responsibility, you'll encounter situations where your duties to the court and third parties may seem to conflict with zealous advocacy for your client. This lesson explores how lawyers balance these competing obligations. You'll learn when you must disclose adverse legal authority, how to handle false evidence, restrictions on ex parte communications, and special rules for prosecutors. We'll also examine your duties when dealing with people who aren't your clients—including when you can (and can't) communicate with them.

Core Concept 1: 🏛️ Candor Toward the Tribunal

The duty of candor requires lawyers to be honest with courts, even when representing clients zealously. This principle protects the integrity of the judicial system.

False Statements and Misleading the Court

A lawyer shall not knowingly make a false statement of fact or law to a tribunal. This prohibition is absolute—you cannot lie to a judge, even to benefit your client.

💡 Key principle: If you make a false statement unknowingly, you must correct it upon discovery, even if the proceeding has concluded.

The Duty to Disclose Adverse Legal Authority

One of the most tested MPRE concepts: A lawyer must disclose legal authority in the controlling jurisdiction known to be directly adverse to the client's position and not disclosed by opposing counsel.

⚠️ Common mistake: Many students think this duty applies to adverse facts. It doesn't! You must disclose adverse law (statutes, regulations, case law), not adverse facts. Facts are for the opposing party to discover.

What counts as "directly adverse"?

• A case from your jurisdiction that contradicts your legal argument
• A statute that undermines your position
• A recent appellate decision that changes the law in your favor (you can't hide it)

What doesn't require disclosure?

• Cases from other jurisdictions (persuasive authority)
• Cases that are distinguishable
• Legal authority that opposing counsel already cited

Handling False Evidence and Client Perjury

This creates one of law's most difficult ethical dilemmas. Your approach depends on when you discover the falsity:

TIMELINE OF LAWYER'S DUTIES
────────────────────────────────────────────────────────

  BEFORE TESTIMONY          DURING TRIAL          AFTER TRIAL
       │                         │                      │
       ▼                         ▼                      ▼
  ┌─────────┐              ┌─────────┐           ┌─────────┐
  │ Client  │              │ Client  │           │ Evidence│
  │  says   │              │ testifies│          │  used & │
  │  will   │              │ falsely  │          │  false  │
  │  lie    │              │          │          │         │
  └─────────┘              └─────────┘           └─────────┘
       │                         │                      │
       ▼                         ▼                      ▼
  Remonstrate              Take remedial            Disclose to
  with client              action: try to           tribunal if
  (persuade not            persuade client          remonstration
  to lie)                  to correct; if           fails
       │                   unsuccessful,            │
       ▼                   may reveal to            ▼
  May withdraw             tribunal                 Confidentiality
  if client                │                        does NOT
  persists                 ▼                        protect fraud
                      Even if info is               on tribunal
                      confidential

Criminal defense exception: Some jurisdictions allow narrative testimony—letting the defendant testify in narrative form without the lawyer's direct examination—as a compromise when a criminal defendant insists on testifying falsely.

Ex Parte Communications

Ex parte means "from one party"—communications with a judge without the opposing party present.

General rule: A lawyer shall not seek to communicate ex parte with a judge or juror about a pending case, except as permitted by law.

Exceptions (when ex parte contact IS allowed):

1. ⚖️ Matters specifically authorized by law (e.g., temporary restraining orders)
2. 📋 Administrative communications (scheduling, non-substantive matters)
3. 🏛️ Applications permitted by court rule

⚠️ Common mistake: Students confuse ex parte communications (with judges) with communications with represented persons (with opposing parties). These are separate rules!

Core Concept 2: ⚖️ Fairness to Opposing Party and Counsel

Zealous advocacy doesn't mean "win at all costs." Lawyers must maintain fairness in the adversarial process.

Obstructing Access to Evidence

A lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.

Scenario	Permitted?	Why?
Advising client to destroy documents per routine policy before litigation anticipated	✅ Yes	No duty to preserve before litigation reasonably anticipated
Destroying documents after receiving discovery request	❌ No	Spoliation of evidence; obstruction
Advising client not to voluntarily provide documents (but comply with valid discovery)	✅ Yes	No duty to help opponent's case voluntarily
Taking physical evidence from client and hiding it	❌ No	Obstruction of justice; may be criminal

💡 Practical tip: If a client brings you potential evidence (like a weapon), you can examine it, but you generally must turn it over to authorities. You cannot hide or destroy it.

Making False Statements to Third Persons

In negotiations and dealings with third parties, lawyers have duties beyond just courtroom candor.

A lawyer shall not knowingly make a false statement of material fact to a third person.

The "puffing" exception: In negotiations, certain statements are considered posturing rather than factual representations:

• "This is my final offer" (when it's not)
• "My client won't accept less than $100,000" (when they will)
• General estimates of value or price

⚠️ These are considered part of negotiation gamesmanship, not prohibited false statements. However, you cannot lie about material facts like:

• The existence of documents
• Whether you have authority to settle
• Material terms of a transaction
• Your client's ability to perform contractually

Core Concept 3: 👨‍⚖️ Impartiality, Decorum, and Trial Publicity

Impartiality and Decorum of the Tribunal

A lawyer shall not seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.

Prohibited conduct includes:

• 🚫 Giving gifts or loans to judges (except as permitted by law)
• 🚫 Disruptive conduct in court
• 🚫 Ex parte communications about the merits
• 🚫 Making statements calculated to materially prejudice proceedings

Reporting judicial misconduct: If a lawyer knows a judge has committed a violation of judicial conduct rules that raises a substantial question about the judge's fitness, the lawyer must report it to the appropriate authority.

Trial Publicity

Lawyers must balance First Amendment rights with the right to a fair trial.

A lawyer shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

Criminal cases: Trial publicity restrictions are stricter in criminal cases because of constitutional fair trial rights.

Core Concept 4: 👔 Lawyer as Witness

Generally, a lawyer should not act as both advocate and witness in the same proceeding.

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

1. 📋 The testimony relates to an uncontested issue
2. 💰 The testimony relates to the nature and value of legal services rendered
3. ⚖️ Disqualification would work substantial hardship on the client

🧠 Memory device - "UNH": Uncontested, Nature of services, Hardship

Why this rule exists: It prevents confusion of roles and potential credibility issues. The jury might give undue weight to testimony from someone also acting as the advocate.

Imputation: If one lawyer in a firm is disqualified as a witness, other firm lawyers can still represent the client (not imputed unless there's also a conflict of interest).

LAWYER AS WITNESS DECISION TREE

        Will lawyer be necessary witness?
                    │
         ┌──────────┴──────────┐
        No                    Yes
         │                     │
         ▼                     ▼
    ✅ Can              Does exception apply?
    advocate                  │
                   ┌──────────┼──────────┐
                   │          │          │
              Uncontested  Fee-related  Hardship
               issue?      testimony?   to client?
                   │          │          │
                   ▼          ▼          ▼
              If YES to any → ✅ Can advocate
                   │
              If NO to all → ❌ Cannot advocate
                             (but firm can)

Core Concept 5: ⚖️ Special Responsibilities of Prosecutors

Prosecutors have unique ethical duties because they represent the government and seek justice, not just convictions.

Heightened Duties of Prosecutors

A prosecutor has the responsibility to:

1. 🔍 Refrain from prosecuting without probable cause - A prosecutor should not bring charges unless supported by probable cause

2. 📋 Make timely disclosure of exculpatory evidence - Must disclose evidence that tends to negate guilt or mitigate the offense (Brady material)

3. ⚖️ Exercise reasonable care to prevent extrajudicial statements by law enforcement - Must prevent police and investigators from making prejudicial public statements

4. 🎯 Not seek waivers of important pretrial rights from unrepresented defendants - Cannot take advantage of pro se defendants

Duty	Prosecutor's Action	Defense Lawyer's Action
Exculpatory evidence	✅ Must disclose	❌ No duty to disclose
Subpoenaing other lawyers	❌ Avoid unless no other source & essential	More flexibility
Trial publicity	Extra responsibility to limit	Standard restrictions
Probable cause to charge	✅ Required	N/A (don't initiate charges)

⚠️ Critical distinction: Defense lawyers are zealous advocates. Prosecutors are ministers of justice who seek truth, not just convictions.

Post-Conviction Responsibilities

A prosecutor who learns of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense must:

1. 🔔 Promptly disclose the evidence to the defendant (unless court order prevents it)
2. 🔍 Investigate to determine if defendant was convicted of an offense they did not commit
3. ⚖️ Seek to remedy the conviction if appropriate

Core Concept 6: 💬 Communications with Represented Persons

This is one of the most frequently tested areas on the MPRE.

The Basic Rule ("No-Contact Rule"): A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law.

When Does the Rule Apply?

NO-CONTACT RULE FLOWCHART

    Is the person represented by counsel?
                │
         ┌──────┴──────┐
        No             Yes
         │              │
         ▼              ▼
    ✅ Can        Is it about the subject
    communicate    of representation?
                        │
                  ┌─────┴─────┐
                 No           Yes
                  │            │
                  ▼            ▼
             ✅ Can      Do you have opposing
             communicate  counsel's consent?
                              │
                        ┌─────┴─────┐
                       Yes           No
                        │            │
                        ▼            ▼
                   ✅ Can       ❌ Cannot
                   communicate  communicate

💡 Key points:

1. "Subject of the representation" means the matter for which the person is represented. You can talk about other topics (though this is risky practically).

2. "Authorized by law" includes court orders, government investigations where authorized by statute, and specific situations where law permits contact.

3. The rule applies to direct and indirect communications (you can't use an intermediary to get around it).

Organizations and Corporations

When an organization is represented, who counts as "off-limits"?

You cannot communicate without consent with:

• Employees whose acts/omissions may bind the organization or be imputed to it
• Employees whose conduct is at issue in the matter
• Employees who have authority to obligate the organization

You CAN communicate with:

• Former employees (they're not currently represented by the organization's counsel)
• Current employees with no managerial authority or connection to the matter

🧠 Memory device: Think "M.A.I." - Managers, Agents who can bind, employees whose conduct is In issue.

Core Concept 7: 🗣️ Dealing with Unrepresented Persons

When dealing with someone who does not have a lawyer, you have different duties.

When communicating with an unrepresented person, a lawyer shall:

1. ❌ Not state or imply that the lawyer is disinterested - You must make clear you represent your client, not them

2. ⚠️ Correct misunderstandings about your role - If the person thinks you're neutral or representing them, correct this immediately

3. 🚫 Not give legal advice (except to get their own lawyer) - When interests conflict or may conflict, the only advice you can give is to get their own attorney

Core Concept 8: 🛡️ Respect for Rights of Third Persons

Beyond specific communication rules, lawyers must respect third parties' legal rights.

A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Examples of violations:

• 📞 Repeatedly calling a witness at unreasonable hours just to harass them
• 📋 Subpoenaing unnecessary witnesses to intimidate
• 🗂️ Making discovery requests designed solely to increase opponent's costs
• 📧 Threatening criminal prosecution to gain advantage in civil matter

Threatening criminal prosecution: Generally improper to threaten criminal charges to gain advantage in a civil case. However, reporting suspected criminal activity to authorities is not a "threat" and may be required.

Communicating with Employees About Their Rights

In organizational representations, you must be careful not to violate employees' individual rights:

• ⚖️ When interviewing employees, explain that their interests may differ from the organization's
• ⚠️ If employee has individual legal interests adverse to the organization, they may need separate counsel
• 📋 You represent the organization, not individual employees (usually)

Detailed Examples

Example 1: The Adverse Authority Dilemma

Scenario: Attorney Alex represents a plaintiff in a personal injury case. During research, Alex discovers a recent state supreme court case that directly contradicts Alex's legal theory. The case is from Alex's jurisdiction and is binding precedent. The defendant's attorney has not cited this case in any briefs.

What must Alex do?

Analysis:

This is a classic adverse legal authority problem. Let's break down the requirements:

1. ✅ Is it legal authority? Yes - it's a case, not a fact
2. ✅ Is it from the controlling jurisdiction? Yes - state supreme court in Alex's state
3. ✅ Is it directly adverse? Yes - it contradicts Alex's legal theory
4. ✅ Has opposing counsel disclosed it? No

Conclusion: Alex must disclose this case to the tribunal. Even though it hurts the client's case, the duty of candor requires disclosure. Alex can (and should) try to distinguish the case or argue it should be limited, but cannot hide it.

What if the case were from a neighboring state? Then it would be persuasive authority only, not binding, and Alex would have no duty to disclose it.

What if it were an adverse fact instead of law? Alex would have no duty to disclose adverse facts—that's the opponent's job through discovery.

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Example 2: The Perjury Problem

Scenario: Defense attorney Dana represents Carl in a robbery trial. During trial preparation, Carl tells Dana he was actually at the scene of the robbery but didn't commit it. At trial, Carl takes the stand and testifies he was "nowhere near that location" at the time of the robbery. Dana realizes Carl is committing perjury.

What must Dana do?

Analysis:

Dana's Options (in order):

1. REMONSTRATE with Carl
   └─→ Try to persuade him to correct testimony
        │
        ├─→ If Carl agrees: Have him correct testimony
        │                   Problem solved! ✅
        │
        └─→ If Carl refuses:
             │
             ▼
2. Take REMEDIAL ACTION
   └─→ May (and likely must) disclose to tribunal
        │
        ▼
3. Even if confidential information
   └─→ Duty to tribunal overrides confidentiality
       when client uses lawyer's services to
       commit fraud on tribunal

Step 1: Dana must first try to persuade Carl to correct his testimony. This is called "remonstration."

Step 2: If Carl refuses, Dana has a duty to take remedial action, which may include disclosing the perjury to the judge. This is one of the few situations where candor to the tribunal overrides client confidentiality.

Step 3: Dana may also seek to withdraw from representation, though this doesn't eliminate the duty to remedy the fraud on the tribunal.

⚠️ Important: This is not a situation where Dana could have simply avoided. Once Carl testifies falsely, Dana must act, even though the information came from the client confidentially.

Criminal defense note: Some jurisdictions allow "narrative testimony" as an alternative—letting the defendant testify in their own words without the lawyer's questions—but this is not universally accepted.

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Example 3: The Corporate Contact Confusion

Scenario: Lawyer Lisa represents plaintiff Pat in a lawsuit against MegaCorp. MegaCorp is represented by counsel. Lisa wants to interview several MegaCorp employees:

• Alice: Former employee who witnessed the incident and no longer works for MegaCorp
• Bob: Current low-level employee who witnessed the incident but has no managerial role
• Carol: Current VP whose decisions led to the incident being sued over
• Dave: Current employee who was peripherally involved and has mid-level management authority

Whom can Lisa contact without MegaCorp counsel's permission?

Analysis:

Employee	Status	Can Contact?	Reasoning
Alice	Former employee	✅ Yes	No longer represented by corporate counsel; she's on her own
Bob	Current low-level witness	✅ Probably yes	No managerial role, didn't cause the incident; acts won't bind corporation
Carol	Current VP whose conduct is at issue	❌ No	Her conduct is the subject of representation; she's represented by corporate counsel
Dave	Current manager involved	❌ No	Has managerial authority AND was involved; represented by corporate counsel

Key distinctions:

• Former employees are fair game—they're no longer represented by the organization's counsel
• Current employees are protected if they're managers, decision-makers, or their conduct is at issue
• Low-level employees who merely witnessed something may be contacted (though this is jurisdictionally variable and risky)

💡 Practical tip: When in doubt, get consent from corporate counsel or seek a court order authorizing the contact.

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Example 4: The Prosecutor's Dilemma

Scenario: Prosecutor Paula has convicted defendant Dan of armed robbery. Dan is serving 15 years. Two years later, Paula learns that a witness who testified at trial has recanted, saying police pressured him to identify Dan. Paula reviews the case and finds the recantation credible. Additionally, another person has confessed to the robbery.

What are Paula's obligations?

Analysis:

As a prosecutor, Paula has heightened post-conviction duties when she learns of new evidence suggesting a wrongful conviction.

Step 1: Assess the evidence

• ✅ Is it new? Yes - recantation occurred after trial
• ✅ Is it credible? Paula believes it is after investigation
• ✅ Is it material? Yes - eyewitness ID was key to conviction
• ✅ Does it create reasonable likelihood Dan didn't commit the offense? Yes - another person confessed

Step 2: Paula's duties

1. 🔔 Promptly disclose to Dan or his lawyer (unless court order prevents disclosure)
2. 🔍 Undertake or supervise further investigation to determine if Dan was wrongfully convicted
3. ⚖️ Seek to remedy the conviction if warranted - this might mean:
   • Asking court to vacate the conviction
   • Consenting to a new trial
   • Dropping charges if appropriate

Why these special duties? Prosecutors are "ministers of justice," not just advocates. Their obligation is to justice, not to preserving convictions. Once Paula knows there's credible evidence of wrongful conviction, she cannot simply ignore it to protect her win record.

⚠️ Common mistake: Students sometimes think prosecutors can keep quiet if the evidence is confidential. Wrong! The duty to remedy wrongful convictions overrides general confidentiality concerns.

⚠️ Common Mistakes to Avoid

Mistake 1: Confusing Adverse Law with Adverse Facts

❌ Wrong thinking: "I found a document that hurts my case. I must disclose it to the judge."

✅ Correct thinking: "I must disclose adverse legal authority (cases, statutes), not adverse facts. Facts are discovered through the adversarial process."

Mistake 2: Thinking All Puffing Is Fine

❌ Wrong thinking: "In negotiations, I can say whatever I want because it's all posturing."

✅ Correct thinking: "I can puff about price and value, but I cannot lie about material facts like the existence of documents or my authority to settle."

Mistake 3: Believing You Can Never Contact Represented Parties

❌ Wrong thinking: "The other party has a lawyer, so I can never speak to them under any circumstances."

✅ Correct thinking: "I can contact them WITH their lawyer's consent, when authorized by law (like a court order), or about matters unrelated to the representation. The no-contact rule has important exceptions."

Mistake 4: Treating All Corporate Employees the Same

❌ Wrong thinking: "The company is represented, so I can't talk to any employees."

✅ Correct thinking: "I need to analyze each employee's role. Former employees are fine. Current low-level employees might be okay. Managers and those whose conduct is at issue are off-limits without consent."

Mistake 5: Forgetting Prosecutors Have Different Duties

❌ Wrong thinking: "Prosecutors should do everything possible to win convictions, just like defense lawyers do for acquittals."

✅ Correct thinking: "Prosecutors are ministers of justice with duties to seek truth, disclose exculpatory evidence, and remedy wrongful convictions—they're not just advocates."

Mistake 6: Thinking Ex Parte Means Any Contact

❌ Wrong thinking: "I can't contact the judge about scheduling because that would be ex parte."

✅ Correct thinking: "Ex parte restrictions apply to communications about the merits of the case. Administrative matters like scheduling are generally fine, and some ex parte applications (like TROs) are authorized by law."

Mistake 7: Misunderstanding the Lawyer-Witness Rule

❌ Wrong thinking: "I saw the accident, so no one from my firm can represent the plaintiff."

✅ Correct thinking: "If I'm a necessary witness, I generally can't serve as trial counsel (unless an exception applies), but other lawyers in my firm CAN represent the client. The disqualification isn't imputed to the whole firm."

🧠 Key Takeaways

📚 Further Study

To deepen your understanding of duties to tribunals and third parties:

• ABA Model Rules of Professional Conduct, Rules 3.1-3.9 and 4.1-4.4: The primary source for all these rules - https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/
• MPRE Study Resources from NCBE: Official practice questions and study guides - https://www.ncbex.org/exams/mpre/preparing/
• ABA Criminal Justice Standards: Prosecution Function: Detailed guidance on prosecutor duties - https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/

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Final Thought: The rules in this lesson protect the integrity of the judicial system while maintaining the adversarial process. Lawyers aren't just advocates—they're officers of the court with duties to the legal system itself. When you face ethical dilemmas involving tribunals and third parties, ask yourself: "Does this action serve justice and maintain public confidence in the legal system?" That question will guide you toward the right answer on the MPRE and in practice. ⚖️