7/16/2013 Scenarios from practice Judicial Decisions NYSBA Ethical Decisions Judiciary Discipline 1 2 Issues that come up in hearings, trials We will use ◦ Including the ethical issues around dealing with ◦ Scenarios “too involved” judges We will discuss Something a bit different, but coming up ◦ Rules more often: We hope you will ◦ Social media issues ◦ Join the discussion For you, other attorneys, paralegals, caseworkers, ◦ Share issues that have come up recently non-parties The ethical rules 3 4 1
7/16/2013 At a 1027 on a newly filed neglect petition you request the child be removed. The court is upset that DSS has not sought court intervention until today given the allegations Here is where it all begins in the petition. The Judge asks why didn’t we file sooner or do an emergency removal? ◦ How do the rules control our professional conduct? ◦ Different standards as government attorneys? ◦ Different pitfalls? 5 6 Should you disclose that the CPS supervisor never came to us to ask for a removal or anything earlier? “Con “Confi fide dentia ntial i l information” c formation” consists of ists of informatio formation ga n gained du during or ring or relating to lating to th the e repre presen entati tation on o of a client, nt, what atev ever er i its If you do disclose that the supervisor did come source, that is source that is (a) prot (a) protecte ted by d by the the attorne attorney- to us a few days ago….. client pr nt privil ivilege, (b) l e, (b) likely to y to be be emba embarr rrassing sing Can the Judge direct you to reveal what the or detrime or detrimental to l to the clie the client if nt if disclos disclosed, d, or or (c) (c) CPS told us? informatio formation th n that th the e client nt has r s reque queste ted be d be Can the Judge ask you what you advised the kept confi kept confidenti tial. . Rule Rule 1.6( 1.6(a) supervisor? 7 8 2
7/16/2013 (a) 1 1. Conf nfident idential al c communi unicat cation on privileged. ivileged. Unless t less the e clien client waives the pr waives the privi ivilege, , an an atto attorney or his or or his or he her r You are preparing a law enforcement witness employe ployee, o , or any y perso rson wh who o o obtains withou tains without th t the e knowl owledg dge of of the clien the client evide evidence of of a a confi confiden enti tial al for fact-finding. During your conversation, commun comm unic ication m made de be betwee tween th the attorn e attorney or ey or h his or s or her r employe ployee an and th d the e client client in in th the co e cour urse se o of pr profes ofessiona sional the detective says that recently the employment, ployment, s shall n all not d t disclose, o lose, or be allowed lowed to to eyewitness to the abuse came to the station disclose lose such ch communi unica cation, n on, nor s shall t all the e client b nt be compelled t elled to disclose s lose such c ch communi unica cation, on, in any y to tell the police that he lied about what he action, on, d disciplinary t linary trial l or hear aring ing, o or administr nistrati tive ve acti action, , pro proceeding or he or hearing con conducted by or on by or on beh behalf saw. This conversation is not yet in any of of an of any stat state, e, mu municipal or loc or local l gov governmental agen agency or or the police department’s records that have by th by the e le legislat gislatur ure o e or an any co y comm mmitt ittee or bo body dy th ther ereo eof. f. Evidence idence of a any s y such ch communication o unication obtained b ined by any y already been obtained through discovery. such p ch person, on, and e d evidence r ence resul sulting ing therefr erefrom, m, s shal all l not be disc not be disclosed by an by any stat y state, e, mu municipal or loc or local l gov government ntal agenc agency or by or by the legi the legislature ure or or any any commit comm ittee o ee or bo body th dy there ereof. 9 10 Do you have to report this new information? A A lawye wyer sh shall n ll not: t: Does it matter if it is exculpatory in nature? (a)(1) su )(1) suppress a ppress any ev y evidence th ence that th the e lawyer er or the the clie client has has a a le lega gal o oblig ligation to to re reveal What if it was a child’s recantation instead, and or or pr produce oduce; the detective states that he thinks the abuse (a (a)(3) c )(3) conceal or l or kn knowingly fa owingly fail to to di disclose sclose happened and the child is now covering it up? that that whic which the the lawye lawyer is re is requ quired by by law law to to reveal; re 11 12 3
7/16/2013 Are DSS attorney’s required to disclose exculpatory information? Under Brad Unde r Brady, y, a a prose prosecuto utor must disclos must disclose exculpatory atory e eviden ence t ce to a defendan ant. What is best practice in this area? Exculp Exculpato atory Evide y Evidence ce, or or Brad Brady Mate y Materia rial, is is evid vidence in in the the go gove vernme ment’s po posse ssess ssion If we put the detective on the stand, do we that that is favo is favorable to to the acc the accused ed and and that that is is have an obligation to elicit this new fact? material to materia to eithe either guilt guilt o or pun punishme ment, incl including e g evid vidence that that may may impac impact the the credibility of edibility of a wi witn tness. s. Co Codifie dified in in Rule Rule 3.8( 3.8(b) 13 14 A lawyer wyer shal shall not…in l not…in a appearing ppearing before a fore a A CPS worker that you have worked with in the tribunal tribu al on beh on behalf lf of a of a clie client: past approaches you in court and tells you (d)(1) stat (d)( state or or allud allude to any to any mat matter that r that the the that she recognizes the respondent’s witness lawyer wyer does not es not rea reasonab ably b ly believe i lieve is on your case. She states that a few years ago relevant or relev or that that will not will not be supp be support orted by by she was at a party and observed the witness admissible evid ad evidence; smoking pot. (d)(4) (d)( 4) ask ask any any que question tion that the law that the lawyer has has no r no reas asonable ba basis to to bel believe is is Can you use the information for cross relev relevant to the case to the case and and that that is inte is intend nded to to examination? degr degrade ade a wit a witness or othe or other r pers person; 15 16 4
7/16/2013 You file for a 1034 (2) access order. Your CPS (a) (3) (a) (3) A lawye A lawyer shall shall not not know knowing ingly: y: off offer r worker’s affidavit states that CPS advised the or or use evidence use evidence that that the lawye the lawyer knows to knows to parent of their intent to seek the order as is be fa fals lse. If e. If a lawyer, wyer, the l the lawyer’s wyer’s cl client, or ient, or a required. The court grants the order. After witness calle witne called by the by the lawy lawyer has has offer offered d leaving the courtroom the CPS worker is re- mat materia rial evide evidence and and the lawyer the lawyer come comes to s to reading the court order and says that she know of i know of its s fa fals lsity, ity, the l the lawyer shal wyer shall l ta take ke actually forgot to advise the parent that she reason rea onab able le reme remedia dial measure measures, inclu , including, if if was going to go to court. nece necess ssar ary, disc disclos losure re to to the tribuna the tribunal. l. Do you have to do anything? 17 18 (d) (d) In In an an ex ex part parte pr e procee oceeding, a ding, a lawye wyer sh shall all Issues inform the tribunal of inform the tribunal of all all mater material facts facts Rules kno known to to the the lawye lawyer tha that will e will enable the the Discussion tribuna tribunal to l to make an informe make an informed decision, decision, wheth whether or or not not the the facts facts are are adve adverse. 19 20 5
7/16/2013 Once you realize the error, should you continue to read the entire e-mail? You receive an e-mail from respondent’s counsel. It is addressed to “Ms. Smith” (the respondent). The e-mail chain contains e- mails back and forth between the respondent If you do read the e-mail, can you use any of and her attorney. It is clear that the e-mail the information you learn during the course was sent to you in error. of the litigation? 21 22 A A lawye lawyer who rece who receives s a docume a document rel relating to to Does this mean I could continue to read on? th the e repre presentat tation of on of th the l e lawye wyer’s cl ’s client an nt and d kn knows or ows or reaso asonably sh ably should kn ould know th ow that at th the e Has opposing counsel now waived the client- docume document was inad was inadve vertently tly sent shall sent shall attorney privilege? promptly notify the promptly notify the sende sender. 23 24 6
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