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Prof Responsibility • Fairness
PR#067
Legal Definition
The duty of fair representation involves the manner of representing clients and includes a number of litigation conduct issues: (1) a lawyer may not improperly contact a juror or judge; (2) a lawyer may not engage in trial publicity that they know or should know will substantially prejudice an adjudicative proceeding; and (3) a lawyer must be fair to opposing counsel and parties.
Plain English Explanation
Though lawyers must fight for their clients, they can't try to "win at all costs." The law demands fairness. At its core, this duty requires attorneys to conduct themselves honestly and professionally in court proceedings and interactions with opposing parties. There are three parts to this duty:
First, lawyers must not improperly contact jurors or judges. This means no attempts to influence or sway them outside of proper courtroom procedures. For example, a lawyer cannot call a juror at home to discuss the case or send a gift to the judge's chambers. Such actions undermine the integrity of the judicial process.
Second, attorneys must be very careful about trial publicity. Any public statements about an ongoing case must not substantially prejudice the proceedings. Lawyers should avoid inflammatory comments to the media that could taint the jury pool or improperly influence public opinion about the case before it's decided.
Third, lawyers have an overarching duty to be fair to opposing counsel and parties. This means no underhanded tactics, deception, or abuse of legal processes. Attorneys should engage in civil, professional behavior - even when zealously advocating for their client.
First, lawyers must not improperly contact jurors or judges. This means no attempts to influence or sway them outside of proper courtroom procedures. For example, a lawyer cannot call a juror at home to discuss the case or send a gift to the judge's chambers. Such actions undermine the integrity of the judicial process.
Second, attorneys must be very careful about trial publicity. Any public statements about an ongoing case must not substantially prejudice the proceedings. Lawyers should avoid inflammatory comments to the media that could taint the jury pool or improperly influence public opinion about the case before it's decided.
Third, lawyers have an overarching duty to be fair to opposing counsel and parties. This means no underhanded tactics, deception, or abuse of legal processes. Attorneys should engage in civil, professional behavior - even when zealously advocating for their client.
Hypothetical
Hypo 1: Bob represents Sam in a divorce case. At a local bar, Bob runs into the judge assigned to the case. The judge starts discussing some details about the proceedings. Bob participates in the conversation, hoping to gain insight that will help Sam's case. Result: Bob has violated the duty of fair representation by improperly communicating with the judge about the case outside of court. Even if the judge initiated the conversation, Bob had an ethical obligation to immediately end any substantive discussion of the matter.
Hypo 2: Bob is defending Sam against criminal charges. The night before jury selection, Bob uses social media to research the backgrounds of potential jurors. He sends friend requests to several of them, hoping to gain access to private information that could help with jury selection. Result: This is an improper attempt to contact jurors. Bob has violated his duty of fair representation by trying to gain an unfair advantage through inappropriate communications with the jury pool.
Hypo 3: Bob represents Sam in a high-profile civil lawsuit. During the trial, Bob gives daily press conferences on the courthouse steps, dramatically proclaiming Sam's innocence and attacking the credibility of opposing witnesses, stating that they are known liars with criminal pasts. Result: Bob's actions likely violate the duty to avoid prejudicial trial publicity. His inflammatory public statements could improperly influence potential jurors or public opinion about the ongoing case.
Hypo 4: Bob represents Sam in contract negotiations with Amy. Bob knows Amy is represented by counsel, but calls her directly to discuss settlement terms when her lawyer is on vacation. Result: This violates Bob's duty to be fair to opposing parties. Contacting a represented party without their lawyer's consent is unethical and undermines the fairness of the process.
Hypo 2: Bob is defending Sam against criminal charges. The night before jury selection, Bob uses social media to research the backgrounds of potential jurors. He sends friend requests to several of them, hoping to gain access to private information that could help with jury selection. Result: This is an improper attempt to contact jurors. Bob has violated his duty of fair representation by trying to gain an unfair advantage through inappropriate communications with the jury pool.
Hypo 3: Bob represents Sam in a high-profile civil lawsuit. During the trial, Bob gives daily press conferences on the courthouse steps, dramatically proclaiming Sam's innocence and attacking the credibility of opposing witnesses, stating that they are known liars with criminal pasts. Result: Bob's actions likely violate the duty to avoid prejudicial trial publicity. His inflammatory public statements could improperly influence potential jurors or public opinion about the ongoing case.
Hypo 4: Bob represents Sam in contract negotiations with Amy. Bob knows Amy is represented by counsel, but calls her directly to discuss settlement terms when her lawyer is on vacation. Result: This violates Bob's duty to be fair to opposing parties. Contacting a represented party without their lawyer's consent is unethical and undermines the fairness of the process.
Visual Aids
Related Concepts
In addition to the ABA rules under the Duty of Fairness to Opposing Party and Counsel, what additional rule does California impose?
Under the Duty of Fair Representation, what must a lawyer do if they receive incriminating evidence from their client?
Under the Duty of Fair Representation, when may an attorney request that a person other than their client refrain from voluntarily providing information to another party?
What is the Duty of Fairness to Opposing Party and Counsel?
