proRo class 13

rule 3.3(a) - fraud isnt' the only source on this misconduct.
rule 3.3(b) is a broader category of conduct.

may have to have candor for the tribunal even if it conflucts with rule 1.6 confidentiality --
one of the few that actually trump this rule.

what must the lawyer first do?
1. go to the client (see comment 10)
2. what if the client says "i didn't know" and can't explain away the documentary evidence? what if there were conflicting documents?
3. withdrawal
4. threat of withdrawal of the testimony, insofar as the client claimed he was out with mikey but not so far as he claims he was out with somebody... will that work?

nix v. whiteside
Penn LR article on ethics 

the ABA model rules is a guide for determining if there's a 6th amendment right. but not every ethical violation is a violation of 6th amendment. the court says that whatever duty of loyalty the lawyer had to the client, is limited to the nature of the trial as a search for the truth.

duties of loyalty and truth to the tribunal are in tension. but according to SCOTUS the duty must lead to persuading the client away from false testimony, and it is always OK to tell the court that the client has perjured himself.

but the concurrences... why does the concurring opinion basically say that this is entirely improper with respect to ethics rules? did the court overstep its authority? this is a constitutional decision, and not one of what is ethical. is ethics an appropriate area for SCOTUS' involvement? what if a state decides that it doesn't want to adopt the same ethical standard - why shouldn't it be free to do so?

what about the opposite side, where the lawyer says "I can't argue your lying testimony to the jury but I'll put you on the stand if you'd like".

testimony in the narrative
-- 
-- using the narrative won't necessarily obviate the need for a mini-trial.

knowledge (see p. 349):
- "know" has to mean something
- what rules might be compromised? for example, the duty of confidence. not knowing something might/not make you an incapable representative
- miranda right type info: "i will have to forewarn you... "--- this may undermine the policies of rule 1.6
- people charged of crimes change their stories all the time, for many reasons. why should the lawyer be put in the position of judging the client? isn't that the jury's job? can't the lawyer assert that they just have stories to deal with? or do we want an attorney to have some responsibility for promoting the uncovering of truth?

hypo.
you represent a party in child custody, and the wife asserts that your client uses meth. the client takes a drug test which is clean for meth and dirty for marijuana. you contact the lab to ask for a test just showing meth tested. the lab says we can't do that, but we can send you a report that has just the meth results. the report is basically a cut and paste.
look at 3.3 and 3.4...
1. when you get the report from the lab, is it OK to show the report to the client and say "we're not gonna use this. get a meth only test"? -- 3.4(a) is not implicated, because you haven't restricted the client's access to the info
2. is it OK to never say anything about the test if it's never asked for and to just order the new test? --- this is probably OK if the test hasn't been asked for
3. what if it's crack cocaine instead? is it still appropriate to set the test aside? --- what if the complaint talks about just meth, but the discovery requests for all drugs, you can dismiss because the request is too broad.

evidence of fitness -- the evidence that you're being asked for is something that, this is a civil case, you will have some problems of assumptions that can't be supported until

hypo.
defendant is facing criminal charges based on a moving violation that lead to accidnet. the ID was taken beforehand, so the officer needs to establish the ID. there's a staff messenger at the firm who looks exactly like your client, and if you allow the officer to approach the messenger and avoid the client, then are you violating rules 3.3 and 3.4? are you violating any ethical codes?
-- "ID should have been revealed to the trial court, and the deception derivates from the court's dignity and authority"

ex parte proceedings: lawyer must inform tribunal of all facts to know whether they are adverse.

suppose a mother has reason to believe the former husband plans to take their daughter to france against her wishes. the mother wants to get a restraining order to prevent this. mom can do this ex parte: if the father finds out, then there may be a move to quickly depart the country. in this circumstance, the lawyer requesting the TRO must present the facts fairly and honestly, and the lawyer would be sanctioned if the lawyer did not disclose all evidence.