Scenario IX

Untitled Slide

Untitled Slide

"Deny all charges and assert comparative negligence defense."
IS THIS OK?

It is true that a lawyer must act with zeal in advocacy upon the client’s behalf. However, the lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics. Here, Chamel’s tactics may be too aggressive and offensive.
Which Model Rules address this?

Rules implicated

• 3.1 - Alesi has "some doubt" but might have merit
• Comment [2] facts don't have to be fully substantiated
• 3.2 - expedite

Can Alesi ethically convince the store clerk to testify?

Convincing the store clerk to testify is not allowed under Rule 3.3(a) and 3.4(b), if Alesi knows the information solicited is false.

Rule 3.3 Comment [12]: "Lawyers have a special obligation to protect a tribunal against . . . fraudulent conduct . . . such as bribing, intimidating or otherwise unlawfully communicating with a witness . . . "

Why can't Alesi deluge the lawyer with papers and motions?

Rule 3.1

• Non-frivolous basis in law and fact? 
• Cmt [1] duty not to abuse legal procedure
• Cmt [2] is there a good faith argument?

If Alesi follows Chamel’s instruction in this regard, he may also violate Rule 3.2, according to which a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. A failure to expedite is not reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose.

Is it ok to resist all discovery attempts and move for sanctions against the other side's attorney?

According to Rule 3.4(d), a lawyer shall not fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party. If Alesi cannot follow Chamel’s instruction to resist all discovery requests. Regarding the sanctions, 3.1 and 3.2 considerations would apply - meritorious or frivolous claim? Dilatory practice?

Should Alesi interview everyone remotely tied to the incident?

4.4(a) - "a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person"

What should he do?

Practically, Alesi should just explain to his client that he cannot undertake such abusive litigation strategies. He could explain to him that sanctions not only open the attorney up to liability for sanctions and disbarment, they also could potentially lead to adverse consequences for the client/party both informally in the eyes of the judge, and formally, in the form of entering judgment against the party (Thunberg v. Strause).

Follow Rule 3.3 Comment [6]: persuade the client and refuse to offer false evidence, and [12]: take remedial measures, including disclosure to the tribunal, if he knows that Chamel "intends to engage" in fraud (if 1.6 conditions are met)