This document summarizes rules regarding candor toward the tribunal for lawyers engaged in litigation. It discusses Model Rule 4-3.3, which prohibits lawyers from making false statements to a tribunal or offering false evidence. The rule requires lawyers to remedy any false statements or evidence that they later learn are not true. It also discusses the duty to disclose adverse legal authority to the tribunal. Scenarios are provided to illustrate how the rules apply in different situations involving potential client perjury or failure to correct false prior statements to the court.

1. Ethics in Litigation
Michael Downey
Downey Law Group LLC
May 2018

2. 2
Divisions of Rules
4-1.0 Terminology
4-1.X Client-Lawyer Relationship (19 rules)
4-2.X Counselor (3 rules)
4-3.X Advocate (9 rules)
4-4.X Transactions with Persons Other than Clients
(4 rules)
4-5.X Law firms and associations (7 rules)
. . .

3. 3
4-3.X Rules
4-3.1 Meritorious Claims and Contentions
4-3.2 Expediting Litigation
4-3.3 Candor toward the Tribunal
4-3.4 Fairness to Opposing Party and Counsel
4-3.5 Impartiality and Decorum of the Tribunal
4-3.6 Trial Publicity
4-3.7 Lawyer as Witness
4-3.8 Special Responsibilities of a Prosecutor
4-3.9 Advocate in Nonadjudicative Proceedings

4. 4
4-4.X Rules
Rule 4-4.1 Truthfulness in Statements to Others
Rule 4-4.2 Communication with Person
Represented by Counsel
Rule 4-4.3 Dealing with Unrepresented Person
Rule 4-4.4 Respect for Rights of Third Persons

5. Meritorious Claims
5

6. 6
Rule 4-3.1 – Meritorious Claims and
Contentions
A lawyer shall not bring or defend a proceeding, or assert
or controvert an issue therein, unless there is a basis in
law and fact for doing so that is not frivolous, which
includes a good faith argument for an extension,
modification or reversal of existing law.
A lawyer for the defendant in a criminal proceeding, or
the respondent in a proceeding that could result in
incarceration, may nevertheless so defend the proceeding
as to require that every element of the case be
established.

7. 7
Scenario
• Lawyer represents Client in discrimination
case
• Client maintains Supervisor was abusive, but
Lawyer can find no credible evidence (other
than Client's claim)
• May Lawyer assert and litigate based on
premise that Supervisor was abusive?

8. 8
Scenario
• Client is charged with possession of marijuana
• Client had marijuana for medical purposes
• May Lawyer argue that marijuana use should
be legal, and thus client should not be
convicted?

9. Rules of Candor
9

10. 10

11. General Motors litigation
• Defective autos
– Ignition switch could shift into “accessory” mode
– Shift disengaged air bags, power steering, and power
brakes
• 124 people killed, 300+ cases settled
• $900M in criminal sanctions plus $4B plus in other
charges
11

12. Client/Constituent Perjury
• GM Engineer testified he never approved a
modification of ignition switch
• Documents revealed engineer had personally
approved changes
12

13. Candor – Rule 4-3.3(a)
A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the
tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the
lawyer’s client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal
matter, that the lawyer reasonably believes is false.
13

14. Remediation – Rule 4-3.3(b) & (c)
b) A lawyer who represents a client in an adjudicative
proceeding and who knows that a person intends to engage,
is engaging or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.
c) The duties stated in paragraphs (a) and (b) continue to the
conclusion of the proceeding, and apply even if compliance
requires disclosure of information otherwise protected by
Rule 4-1.6.
14

15. 15
Source Conduct Regulated Potential Sanctions Other
Rule 4-3.1 No knowingly false or
frivolous claims,
defenses, or
arguments
Discipline of attorney
Rule 4-3.3 No false statements of law
or fact to tribunal
Need to disclose controlling,
directly adverse
authority not
disclosed by opponent
Discipline of attorney Duty overrides duty of
confidentiality
Duty to remedy misstated
law or material fact
continues to end of
case
Rule 4-3.4 Cannot destroy or conceal
evidence, falsify
evidence, make
frivolous discovery
requests
Discipline of attorney
Rule 4-8.4 Prohibits any conduct
involving dishonesty,
fraud, deceit, or
misrepresentation
Discipline of attorney
No Falsehoods before Tribunals

16. 16
Source Conduct Regulated Potential Sanctions Other
FRCP 11/MO Rule 55.03 Signature on pleadings
shows non frivolous
basis in fact and law,
not for improper
purpose
Monetary or non-
momentary on lawyer,
firm, and possibly
client
21-day (MO – 30 day) safe
harbor for motion (but
not court sua sponte
action)
FRCP 37/MO Rule 61.01 Incomplete, evasive, or
unanswered discovery
Contempt of court, fees,
compelled response or
protective order, fees
and costs
Fees required unless
justified or no attempt
to resolve
28 U.S.C. 1927
514.205 RSMo.
Unreasonable or vexatious
multiplication of
proceedings
Award of extra fees and
costs
Permissive award
No safe harbor
Inherent power of the court Power of court to punish
and maintain order
Monetary and non-
monetary powers
Very flexible
Most concerns relate to
"due process"

17. Candor – Rule 4-3.3(a)
A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the
tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the
lawyer’s client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal
matter, that the lawyer reasonably believes is false.
17

18. 18
What Is a Tribunal?
Rule 4-1.0(m) "Tribunal" denotes a court, an arbitrator in a
binding arbitration proceeding or a legislative body,
administrative agency or other body acting in an adjudicative
capacity. A legislative body, administrative agency or other
body acts in an adjudicative capacity when a neutral official,
after the presentation of evidence or legal argument by a
party or parties, will render a binding legal judgment directly
affecting a party's interests in a particular matter.

19. 19
"Tribunal" Under Rule 4-3.3
Rule 4-3.3 cmt [1] This Rule governs the conduct of a lawyer who
is representing a client in the proceedings of a tribunal. See
Rule 4-1.0(m) for the definition of "tribunal." It also applies
when the lawyer is representing a client in an ancillary
proceeding conducted pursuant to the tribunal's adjudicative
authority, such as a deposition. Thus, for example, paragraph
(a)(3) requires a lawyer to take reasonable remedial measures
if the lawyer comes to know that a client who is testifying in a
deposition has offered evidence that is false.

20. Scenario
• Mother wants to place child up for adoption, Father does not
• Lawyer represents mother at hearing and elicits testimony
– Mother consulted with birth father at length
– Birth father had not stepped forward since birth to claim
parental rights
• Lawyer had spoken to Father’s attorney and knew Father had
been deceived about when child was born . . . and did not
know about hearing
20

21. In re Krigel (Mo. 1/26/2016)
• Krigel had violated Rule 4-3.3 by soliciting
false testimony, in that Krigel knew the
testimony omitted essential information
• Krigel received a one-year “stayed suspension
with two years of probation
21

22. 22
Scenario
• Lawyer represents Supervisor on employment discrimination
claim in US District Court (ED MO)
• Lawyer relies on 1985 Eighth Circuit opinion to argue Missouri
anti-discrimination law does not provide for supervisor
liability – only "employer" is liable
• Lawyer fails to cite 2005 Missouri Court of Appeals case that
says Missouri anti-discrimination law does allow for
supervisor liability
• Did Lawyer violate Rule 4-3.3?
– Would it matter if opponent was pro se?

23. 23
Anderson v. Ames True Temper
(E.D. Mo. 2008)
• Defense counsel removes a state employment discrimination
case plaintiff has filed pro se on diversity grounds.
• There are individual defendants who would spoil diversity
• Relying on 8th Circuit case, defense counsel claims these
defendants were fraudulently joined because there is no
individual liability under the Missouri anti-discrimination law
• More recent Missouri intermediate appellate court and
federal district court opinions find individual liability

24. 24
Precision Specialty Metals v. United States
(Fed Cir. 2003)
• Court denied extension and ordered US to file
response "forthwith"
• Government waited 12 days to file response
• Government argued "forthwith" allowed filing within
12 days

25. 25
Precision Special Metals v. U.S.
(Fed Circuit 2003)
Court denied motion for extension of time and ordered US to file its response to a motion for summary judgment "forthwith."
This started a fight as to what "forthwith" meant.
Filings
See City of New York v. McAllister
Brothers, Inc., 278 F.2d 708, 710
(1960) ("'Forthwith' means
immediately, without delay, or as soon
as the object may be accomplished by
reasonable exertion." Emphasis
added.)
Case Law
"Forthwith" means immediately,
without delay, or as soon as the object
may be accomplished by reasonable
exertion. The Supreme Court has said
of the word that "in matters of
practice and pleading it is usually
construed, and sometimes defined by
rule of court, as within twenty-four
hours." Dickerman v. Northern Trust
Co., 1900 176 U.S. 181, 193, 20 S. Ct.
311, 315, 44 L. Ed. 423. McAllister, 278
F.2d at 710.

26. 26
Filings
While we did not review the Supreme
Court's decision in Henderson v. United
States, 517 U.S. 654, 680 (1996), in
interpreting the meaning of "forthwith," it
is noteworthy that in his dissenting
opinion, Justice Thomas, with whom The
Chief Justice and Justice O'Connor joined,
citing Amella v. United States, 732 F.2d
711, 713 (C.A. 1984), stated that
"[a]lthough we have never undertaken to
define 'forthwith' . . . , it is clear that the
term 'connotes action which is
immediate, without delay, prompt, and
with reasonable dispatch.'")
Case Law
Although we have never undertaken to
define "forthwith" as it is used in the SAA,
it is clear that the term "connotes action
which is immediate, without delay,
prompt, and with reasonable dispatch."
Amella v. United States, 732 F.2d 711, 713
(C.A.9 1984) (citing Black's Law Dictionary
588 (5th ed. 1979)). See also Dickerman
v. Northern Trust Co., 176 U.S. 181, 192-
193, 20 S.Ct. 311, 315, 44 L. Ed. 423
(1900). Henderson, 517 U.S. at 680
(Thomas, J., dissenting).

27. 27
Scenario
• Lawyer knows the statute of limitation bars
claim.
• May lawyer still assert claim?

28. 28
Scenario
• Lawyer represents person seeking protective order
from abusive boyfriend
• Lawyer tells judge that boyfriend hit client
• Judge states, "Well then client should receive order
of protection."
• Lawyer knows client started altercation. Does Lawyer
need to tell this to judge?

29. 29
Rule 4-3.3
(d) In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known
to the lawyer that will enable the tribunal to
make an informed decision, whether or not
the facts are adverse.

30. 30
Tricks of the Trade Scenarios
• Is it okay to have a Client dress in old clothes for court
• Is it okay to have low-compensation employee sit at counsel
table to make corporate defendant look near bankruptcy
• Is it okay to have a Client undergo bariatric surgery in the
hopes that a jury will find the Client less responsible for
injuries he suffered in a fall?

31. 31
Other Candor Rules
Rule 4-8.4 (catch-all)
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;
(b) commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other
respects;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; . . .

32. 32
Rule 4-3.3 versus Rule 4-8.4
• Rule 4-8.4 applies in all settings, even when not
acting as a lawyer
– Examples: Bill Clinton and Richard Nixon
• Most Rule 4-8.4 interpretations include "materiality"
requirement
• Rule 4-8.4 silent on application of duty of
confidentiality

33. 33
Candor Outside Tribunal
Rule 4-4.1 In the course of representing a client a
lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third
person; or
(b) fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is prohibited by
Rule 4-1.6.

34. 34
Candor Before the Tribunal –
Rule 4-3.3
• Rule 4-3.3 differs from Rule 4-4.1
– "Materiality" issue
– Duty to remedy in Rule 4-3.3
– Candor duty in Rule 4-3.3 overrides confidentiality

35. 35
Presenting False Evidence
Rule 4-3.4 A lawyer shall not:
. . .
(b) falsify evidence, counsel or assist a witness to testify falsely,
or offer an inducement to a witness that is prohibited by law;
. . .
(e) in trial, allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal
opinion as to the justness of a cause, the credibility of a
witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or

36. 36
Scenario
• Lawyer has client/defendant and another
person switch places to show eye witness
cannot accurately identify client/defendant

37. 37
Bronston v. United States (US 1973)
• Bronston had personal Swiss bank account
• Bronston filed for bankruptcy – closed account right
before bankruptcy
• Bronston's responses about Swiss bank accounts:
– Do you have a Swiss bank account?
– A: No sir
– Have you ever?
– A: The company had an account there for about six months
. . . .

38. 38
Remediation of Past False Testimony
(Rule 4-3.3)
• If a lawyer, the lawyer's client, or a witness called by the
lawyer has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.
• The duties stated in Rule 4-3.3(a) and (b) continue to the
conclusion of the proceeding and apply even if compliance
requires disclosure of information otherwise protected by
Rule 4-1.6.

39. 39
False Testimony in Criminal Case
• Fifth Amendment complicates issue
– Rule 4-3.3(a)(3) still applies but
– Client may have right to testify even if lawyer
believes testimony is false
• One solution is to allow client to testify in "narrative
fashion"

40. 40
Withdrawal in Light of
False Testimony
• The lawyer may . . . be required by Rule 4-1.16(a) to seek permission of
the tribunal to withdraw if the lawyer's compliance with Rule 4-3.3's duty
of candor results in such an extreme deterioration of the client-lawyer
relationship that the lawyer can no longer competently represent the
client.
• In connection with a request for permission to withdraw that is premised
on a client's misconduct, a lawyer may reveal information relating to the
representation only to the extent reasonably necessary to comply with
Rule 4-3.3 or as otherwise permitted by Rule 4-1.6

41. 41
Scenario
• Lawyer represents client in workers
compensation case seeking permanent
disability
• Client dies of causes unrelated to case
• Must lawyer notify court of client's death?

42. 4.X Rules
42

43. 43
Transactions with Persons Other Than
Clients
Rule 4-4.1 Truthfulness in Statements to Others
Rule 4-4.2 Communication with Person
Represented by Counsel
Rule 4-4.3 Dealing with Unrepresented Person
Rule 4-4.4 Respect for Rights of Third Persons

44. Rule 4-4.1 – Truthfulness in
Statements to Others
44

45. 45
Rule 4-4.1 Truthfulness In Statements To
Others
• In the course of representing a client a lawyer
shall not knowingly:
(a) make a false statement of material fact or law to
a third person; or
(b) fail to disclose a material fact to a third person
when disclosure is necessary to avoid assisting a
criminal or fraudulent act by a client, unless
disclosure is prohibited by Rule 4-1.6.

46. 46
Not Limited Under Rule 4-4.1
• False statements a lawyer makes unknowingly
• False statements about immaterial matters
• False statements not of law or fact – for
example, false opinions
• False statements not made in the course of
representing a client

47. 47
Scenario
• Two lawyers interview witness regarding defense
of client s criminal charges
• Witness asks if lawyers are recording call
• Lawyers answer:
– No
– We re on a speaker phone so we can hear you.
• In re PRB (VT 2009)

48. 48
Statements of Facts
• [2] This Rule refers to statements of fact. Whether a particular statement
should be regarded as one of fact can depend on the circumstances.
Under generally accepted conventions in negotiation, certain types of
statements ordinarily are not taken as statements of material fact.
– Estimates of price or value placed on the subject of a transaction and
– a party s intentions as to an acceptable settlement of a claim are ordinarily in
this category, and so is
– the existence of an undisclosed principal except where nondisclosure of the
principal would constitute fraud.
• Lawyers should be mindful of their obligations under applicable law to
avoid criminal and tortious misrepresentation.

49. Rule 4-4.2 – The
Anti-Contact Rule
Rule 4-4.3 – Dealing with Unrepresented
Persons
49

50. 50
Rule 4-4.2 Communication With Person
Represented By Counsel
In representing a client, a lawyer shall not
communicate about the subject of the
representation with a person the lawyer
knows to be represented by another lawyer
in the matter, unless the lawyer has the
consent of the other lawyer or is authorized
to do so by law or a court order.

51. 51
Elements of Anti-Contact Rule
• In representing a client
• A lawyer shall not communicate
• About the subject of the representation
• With a person the lawyer knows to be represented
by another lawyer in the matter
• Unless
– Lawyer has the consent of the other lawyer or
– Authorized by law or a court order.

52. 52
The Accident
W1
Joe
W2
W3
Joe's Trucking
Your
Client

53. 53
"Represented Persons" – Rule 4-4.2
• "In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer
or is authorized to do so by law or a court order."

54. 54
Rule 4-4.3 Dealing With Unrepresented
Person
• In dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall not state or imply that
the lawyer is disinterested.
• When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer s role in
the matter, the lawyer shall make reasonable efforts to
correct the misunderstanding.
• The lawyer shall not give legal advice to an unrepresented
person, other than the advice to secure counsel, if the lawyer
knows or reasonably should know that the interests of such a
person are or have a reasonable possibility of being in conflict
with the interests of the client.

55. 55
Unrepresented Persons – Rule 4-4.3
• No (falsely) implying disinterested.
– In dealing on behalf of a client with a person who is not represented by
counsel, a lawyer shall not state or imply that the lawyer is disinterested.
• Must clarify role when misunderstood.
– When the lawyer knows or reasonably should know that the unrepresented
person misunderstands the lawyer's role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding.
• No giving legal advice if conflicting interests.
– The lawyer shall not give legal advice to an unrepresented person, other than
the advice to secure counsel, if the lawyer knows or reasonably should know
that the interests of such a person are or have a reasonable possibility of
being in conflict with the interests of the client.

56. 56
The Accident – Joe with Lawyer
W1
Joe
W2
W3
Joe's Trucking
Your Client

57. 57
Elements of Anti-Contact Rule
• In representing a client
• A lawyer shall not communicate
• About the subject of the representation
• With a person the lawyer knows to be represented
by another lawyer in the matter
• Unless
– Lawyer has the consent of the other lawyer or
– Authorized by law or a court order.

58. 58
The Accident #2 – Corporate Context
W1
TD
W2
W3
Nationwide
Trucking Co.
NTC
Driver
Your Client

59. 59
The Accident #2 – NTC with Lawyer
W1
TD
W2
W3
Nationwide
Trucking Co.
NTC
Driver
Your Client

60. 60
Corporate Employees (Constituents)
Rule 4-4.2 cmt [7] In the case of a represented
organization, Rule 4-4.2 prohibits communications
with a constituent of the organization who
– supervises, directs, or regularly consults with the
organization's lawyer concerning the matter or
– has authority to obligate the organization with respect to
the matter or
– whose act or omission in connection with the matter may
be imputed to the organization for purposes of civil or
criminal liability.

61. 61
Your Client
The Accident #2 – NTC with Lawyer –
Driver Fired – Scenario 11-10
W1
W2
W3
Nationwide
Trucking Co.
NTC
Driver

62. 62
No Coverage for Former Constituents
• Rule 4-4.2 cmt [7] "Consent of the
organization's lawyer is not required for
communication with a former constituent."

63. 63
May Not Invade Privilege
• Rule 4-4.2 cmt [7] "In communicating with a
current or former constituent of an
organization, a lawyer must not use methods
of obtaining evidence that violate the legal
rights of the organization. See Rule 4-4.4"

64. 64
The Accident #2 – NTC with Lawyer – Driver with
Separate Lawyer
W1
W2
W3
Nationwide
Trucking Co.
NTC
Driver
Your Client

65. 65
Constituent with Separate Counsel
Rule 4-4.4 cmt [7] If a constituent of the organization is
represented in the matter by his or her own counsel,
the consent by that counsel to a communication will
be sufficient for purposes of this Rule. Compare Rule
4-3.4(f).

66. 66
The Accident #3 – In NTC's Yard
NTC
CEO
NTC
DriverNationwide
Trucking Co.
W1 NTC EE

67. 67
Your Client
The Accident #3 – NTC with Counsel
– Scenario 11-13
NTC
CEO
NTC
DriverNationwide
Trucking Co.
W1 NTC EE
Coverage
Possible

68. 68
Corporate Employees (Constituents)
Rule 4-4.2 cmt [7] In the case of a represented
organization, Rule 4-4.2 prohibits communications
with a constituent of the organization who
– supervises, directs, or regularly consults with the
organization's lawyer concerning the matter or
– has authority to obligate the organization with respect to
the matter or
– whose act or omission in connection with the matter may
be imputed to the organization for purposes of civil or
criminal liability.

69. 69
Is NTC Employee Covered?
• "Are you represented by your own counsel regarding
accident?"
• If "yes," terminate communication
• "Have you spoken with NTC's counsel about the
accident?"
• If "yes," explain they should tell you nothing
about such communications.

70. 70
Points to Emphasize
• Protection only about matter of
representation
• Irrelevant
– Method of communication
– Who initiates communication

71. 71
Client May Speak to Covered Person
• "Parties to a matter may communicate directly
with each other, and a lawyer is not prohibited
from advising a client concerning a
communication that the client is legally
entitled to make." Rule 4-4.2 cmt [4]

72. 72
Scenario
• Plaintiff Lawyer is suing Company
• Company has retained defense lawyer to
handle case
• May Plaintiff Lawyer call in-house counsel
directly to discuss settling case

73. 73
Communication with In-House Counsel
• ABA Formal Opinion 06-443 indicates
communications between Opposing
Counsel and in-house counsel are
permitted, even if Litigation Counsel
is being circumvented

74. 74
Scenario
• Lawyer 1 represents Client in matter
• Client contacts Lawyer 2 about handling
matter
• Lawyer 2 and Client discuss matter
• Has Lawyer 2 violated Rule 4-4.2?

75. More on Rule 4-4.3 – Respect for Rights of
Unrepresented Persons
75

76. 76
Unrepresented Persons – Rule 4-4.3
• No (falsely) implying disinterested.
– In dealing on behalf of a client with a person who is not represented by
counsel, a lawyer shall not state or imply that the lawyer is disinterested.
• Must clarify role when misunderstood.
– When the lawyer knows or reasonably should know that the unrepresented
person misunderstands the lawyer's role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding.
• No giving legal advice if conflicting interests.
– The lawyer shall not give legal advice to an unrepresented person, other than
the advice to secure counsel, if the lawyer knows or reasonably should know
that the interests of such a person are or have a reasonable possibility of
being in conflict with the interests of the client.

77. 77
Scenario
• Lawyer is representing Client suing for
employment discrimination
• Client may sue Supervisor
• Lawyer contacts Supervisor to set up meeting
• Supervisor asks, Do I need my own lawyer?
• What can Lawyer answer?

78. 78
Rule 4-1.13
(f) In dealing with an organization's directors, officers, employees,
members, shareholders or other constituents, a lawyer shall explain
the identity of the client when the lawyer knows or reasonably should
know that the organization's interests are adverse to those of the
constituents with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its
directors, officers, employees, members, shareholders or other
constituents, subject to the provisions of Rule 4-1.7. If the
organization's consent to the dual representation is required by Rule
4-1.7, the consent shall be given by an appropriate official of the
organization other than the individual who is to be represented, or by
the shareholders.

79. Rule 4-4.4 – Respect for the Rights of Third
Persons
79

80. 80
Rule 4-4.4 Respect For Rights
Of Third Persons
(a) In representing a client, a lawyer shall not use means that
have no substantial purpose other than to embarrass, delay,
or burden a third person, or use methods of obtaining
evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document relating to the
representation of the lawyer's client and knows or reasonably
should know that the document was inadvertently sent shall
promptly notify the sender.

81. 81
Scenario
• Defense Lawyer subpoenas medical records of
Plaintiff
• Doctor calls Defense Lawyer and says, How
about if we just send you the records? Can we
skip the deposition?

82. 82
Rule 4-4.4 Respect For Rights
Of Third Persons
(b) A lawyer who receives a document relating to the
representation of the lawyer's client and knows or
reasonably should know that the document was
inadvertently sent shall promptly notify the sender.

83. 83
Inadvertent Production
• Old Rule – recipient of metadata
– Notify producing party of production of privileged
information
– Refrain from reviewing privileged information
– Abide by producing counsel s instruction – at
least until a court orders otherwise

84. 84
New Rule 4-4.4(b)
A lawyer who receives a document relating to
the representation of the lawyer's client and
knows or reasonably should know that the
document was inadvertently sent shall
promptly notify the sender.

85. In re Eisenstein (Mo. 4/5/2016)
• Eisenstein represented Husband in divorce
• Husband accessed Wife’s email without permission, and gave
Eisenstein documents including questions Wife’s attorney had
prepared for direct examination
• Eisenstein did not produce the documents received from
Wife’s email, until giving them to opposing counsel as exhibits
during trial
85

86. Consequences in Eisenstein
• Eisenstein was found to have used improperly
obtained information (violating Rule 4-4.4)
and concealing documents with evidentiary
value (violating Rule 4-3.4)
• Eisenstein received an indefinite (minimum 6
month) suspension
86

87. Michael Downey
Downey Law Group LLC
(314) 961-6644
(844) 961-6644 toll free
mdowney@DowneyLawGroup.com
Thank You