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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Connecticut Legal Ethics

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:
Connecticut Commentary:

3.1:101      Model Rule Comparison

There are no significant differences between Conn. Rule 3.1 and Model Rule 3.1.

There are, however, several differences between the commentary of the Connecticut Rule 3.1 and the Model Rule 3.1. In the second paragraph of the Commentary, the Connecticut rule deleted the requirement that lawyers Ëinform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith arguments in support of their clients' positions.Ó In addition, the Connecticut Commentary expands upon the Model RuleÁs designation of a frivolous claim by including when a Ëclient desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person . . . .Ó

3.1:102      Model Code Comparison

Although there is no direct corollary to the Conn. Rule 3.1, Model Code DR 7-102(A) had the same effect. Model Code DR-102(A) p(1), which provided that a lawyer may not Ë[f]ile a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another,Ó but with three qualifications. First, the test of improper conduct is changed from Ëmerely to harass or maliciously injure anotherÓ to the requirement that there be a basis for the litigation that is Ënot frivolous.Ó This includes the concept stated in DR 7-102(A) (2) that a lawyer may advance a claim or defense unwarranted by existing law if Ëit can be supported by good faith argument for an extension, modification, or reversal of existing law.Ó Second, the test in Rule 3.1 is an objective test, whereas DR 7-102(A)(1) applied only when the lawyer Ëknows or when it is obviousÓ that the litigation is frivolous. Third, DC Rule 3.1 makes an exception for a criminal case, or a case in which the involuntary institutionalization of the client may result (for example, certain juvenile proceedings); in such a case the lawyer shall put the prosecution to its proof whenever the client elects to contest the case, even if there is no nonfrivolous defense.

3.1:200   Non-Meritorious Assertions in Litigation

Primary Connecticut References: CT Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:
Connecticut Commentary:

The court in Wendt v. Wendt, 59 Conn.App. 656, 757 A.2d 1225 (Conn.App. 2000), admonished the plaintiff for accusing the trial judge of gender bias in his ruling without substantiating his accusation. Id. at 696. The court stated that, Ë[t]he plaintiff has failed to provide a single shred of evidence showing gender bias or even inference or the appearance of gender bias by the court.Ó Id. at 697-98. It ended by suggesting that, Ëthe plaintiffÁs counsel review Rule 3.1 of the Rules of Professional Conduct.Ó Id.

Informal Opinion 98-5 (1998), addressed the issue of whether a lawyer assisting a pro se litigant by preparing pleadings, briefs and other materials must ethically disclose the lawyer's identity to the court. The Committee advised that, Ëif a brief is prepared in any substantial part by a member of the bar, it must be signed by him.Ó (quoting Ellis v. State of Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)). The Committee reasoned that, ËRules of Professional Conduct 3.1, and 3.3(a)(1) and (3) impose obligations on counsel who prepare pleadings and briefs to be filed in litigation.Ó Therefore, it noted that if counsel were able to file briefs anonymously, Ë[c]ounsel who prepare and control the content of pleadings, briefs and other documents filed with a court could evade the reach of these Rules by concealing their identities.Ó The Committee lastly noted that, Ë[s]imilar considerations concerning the application of Rule 11 of the Federal Rules of Civil Procedure have been expressed by the court in Ellis v. State of Maine, 448 F.2d 1325 (1st Cir. 1971).Ó

The Committee, in Informal Opinion 95-9 (1995), dealt with the problem of whether an attorney may ethically assert a claim of collateral estoppel in response to a bankÁs demand that funds be returned after it mistakenly released them from the wrong account. In this case, the bank had released funds, in accordance with an execution, from a cooperate account rather than a personal one, due to the fact that the individual was a signatory on both accounts. The Committee advised that Rule 3.1 mandates that, Ë[w]hile an attorney has a duty to use the legal procedure for the fullest benefit of his client, he also has a duty not to abuse legal procedure.Ó However, the Committee stated that in this case, if the attorney Ëfiled a good faith claim, and properly notified all parties, [he did] not violate Rule 3.1.Ó

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Primary Connecticut References: CT Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:
Connecticut Commentary:

In Lance v. Lyman, No. 5498531999 WL 557968 (Conn.Super. July 21, 1999), the plaintiff moved the court to issue sanctions against the defendant for filing what he considered a frivolous motion in violation of Rule of Professional Conduct 3.1. Id. at 3. The plaintiff argued that because the court had already denied a request to revise the complaint, the defendantÁs motion to strike the complaint is merely duplicative of the arguments raised in his request to revise. Id. In denying the sanctions, the court ruled that, Ë[b]ecause the courtÁs ruling on the defendantÁs request to revise has no bearing on the defendantÁs present substantive attacks on the legal sufficiency of the amended complaint, this court does not deem the defendantÁs motion to strike as frivolous.Ó Id.

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

Primary Connecticut References: CT Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:
Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

3.1:500   Complying with Law and Tribunal Rulings

Primary Connecticut References: CT Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:
Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:
Connecticut Commentary:

3.2:101      Model Rule Comparison

Conn. Rule 3.2, with its requirement of reasonable efforts to expedite litigation, is identical to the entire Model Rule 3.2.

3.2:102      Model Code Comparison

Conn. Rule 3.2 affirmatively requires that a lawyer, Ëmake reasonable efforts to expedite litigation consistent with the interests of the client.Ó While the corresponding DR 7-101(A)(1) is more expansive in negatively proscribing that a lawyer shall not, Ë[f]ile a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.Ó

3.2:200   Dilatory Tactics

Primary Connecticut References: CT Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:
Connecticut Commentary:

The court in Hornat v. Mercure, No. BS2075F/96, 2002 WL 241443 (Conn.Super. Jan. 29, 2002), dealt with the scope of representation by a court appointed attorney in a contempt proceeding. The court stated that Practice Book ã 25-63(c), was promulgated to prevent dilatory tactics. It holds that,Ë[a]ny attorney appointed to represent the contemnor shall represent such contemnor only on the contempt, and shall not be appointed for any other purpose.Ó The court further noted that, Ë[t]he rules committee promulgated this rule primarily in response to dilatory motions filed by some court-appointed attorneys at taxpayer expense.Ó Id. at *8. The court ended, however, by noting that, Ë[t]he rule does not and can not preclude an attorney from competently, diligently and zealously representing his client as he is ethically required to do,Ó in accordance with Rules of Professional Conduct 1.1, 1.3, 3.1 and 3.2. See also Robinson v. Gwozdz, No. FA95-0619118, 2001 WL 267647 (Conn.Super. Feb. 23, 2001).

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary Connecticut References: CT Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:
Connecticut Commentary:

In the case of Statewide Grievance Committee v. Pinsky, No. CV010452000S, 2001 WL 1614892 (Conn.Super. Nov. 28, 2001), the court held that the defendant violated Rules 1.3 and 3.2 of the Rules of Professional Conduct by, Ëfailing diligently and expeditiously to commence a lawsuit on [the defendantÁs] behalf within the applicable statute of limitations.Ó Id. at *1. As a result of these violations, among others, the court sentenced the defendant to a one year suspension of his license, he was ordered to take and pass the Multistate Professional Responsibility Examination and to take and complete one continuing legal education class in professional responsibility prior to his restatement. Id. at *1.

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 3.3
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:
Connecticut Commentary:

3.3:101      Model Rule Comparison

Paragraphs (a)(1) of the Conn. Rule and the Model Rule are substantially similar, except that where subparagraph (a)(1) of the Conn. Rule prohibits a lawyer from knowingly making false statements of material fact or law to a tribunal, the Model Rule is not limited to material facts and furthermore prohibits the failure to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

Paragraph (a)(2) of the Conn. Rule is a provision not contained in the Model Rule, requiring a lawyer Ëto disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.Ó

Paragraph (a)(3) of the Conn. Rule is identical to Paragraph (a)(2) of the Model Rule.

Paragraph (a)(4) of the Conn. Rule is substantially similar to Paragraph (a)(3) of the Model Rule, except that the provision in the Model Rule permitting a lawyer to refuse to offer certain evidence the lawyer reasonably believes to be false is located in Paragraph (c) of the Conn. Rule.

The Conn. Rule does not include the disclosure requirement of Paragraph (b) of the Model Rule. Rather, Paragraph (b) of the Conn. Rule is identical to Paragraph (c) of the Model Rule.

Paragraph (d) of the Conn. Rule is identical to Paragraph (d) of the Model Rule.

3.3:102      Model Code Comparison

Conn. Rule 3.3(a)(1), prohibiting false statements of material facts or law to a tribunal, is substantially identical to DR 7-102(A)(5) of the Model Code, although DR 7-102(A)(5) was not, like Rule 3.3(a)(1), limited to false statements made to a tribunal. (Note that Rule 4.1(1), prohibiting false statements to a third person, also derives from DR 7-102(A)(5)).

Subparagraph (a)(2) of the Conn. Rule, on counseling or assisting a client to engage in criminal or fraudulent conduct, contains the same prohibition as did DR 7-102(A)(7).

Subparagraph (a)(3) of the Conn. Rule, requiring the disclosure of directly adverse authority, is substantially identical to DR 7-106(B)(1), except that subparagraph (a)(3) requires disclosure only of adverse authority that is dispositive of a question at issue. Subparagraph (a)(4) of the Conn. Rule is similar in substance to DR 7-102(A)(4), except that the latter prohibited a lawyer from knowingly using perjured testimony or false evidence without exception, while the Conn. Rule has an exception for circumstances described in paragraph (b), which has no counterpart in the Model Code.

Paragraph (d), directing a lawyer who learns that a fraud has been perpetrated on a tribunal to reveal the fraud unless the information is protected by Rule 1.6, is similar in substance to DR 7-106(B).

3.3:200   False Statements to a Tribunal

Primary Connecticut References: CT Rule 3.3(a)(1) & (2)
Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary:
Connecticut Commentary:

The court held that an attorneyÁs conduct of showing a client a settlement statement indicating a negative balance and withholding a second statement showing a reduction in medical bill Ëviolated the spirit, if not the letter,Ó of Conn. Rule 3.3. Statewide Grievance Committee v. Browne, 2001 WL 1614323, at *2 (Conn. Super. Nov. 19, 2001).

The court in Sullivan v. Town of Monroe, 2001 WL 951363, at *9-10 (Conn. Super. July 17, 2001) held that an attorney violated Conn. Rule 3.3(a)(1) when (1) she stated that there had been a Ëcomplete breakdown in communication;Ó (2) she submitted an affidavit alleging instances of gender bias throughout the trial of the case; and (3) she Ëendeavored to instill apprehension in [her clients] by warning them that the defendants were seeking to have sanctions imposed upon them. These were all conveyances of information that she knew to be untrue.

In Yamin v. Savarese & Schefiliti, P.C., 58 Conn. App. 171, 753 A.2d 388 (2000), the court affirmed the sanctions imposed on a lawyer who knowingly misstated the content of an interrogatory upon which a motion to dismiss and motion in limine were based.

In Ham v. Greene, 2000 WL 872707, at *10 (Conn. Super. June 12, 2000), the court found that an attorney who presented his credentials and claimed hours in an affidavit which contained serious inaccuracies violated Conn. Rule 3.3.

The court in State of Connecticut Department of Correction v. Freedom of Information Commission, 1992 WL 201912, at *3 (Conn. Super. Aug. 6, 1992) held that a letter to the Freedom of Information Commission from a public defender, stating that the public defender represented two individuals, each charged with a crime, was a misstatement when it was no longer true that each individual was charged with a crime. ËAlthough there [was] no evidence that the public defender intended affirmatively to misrepresent a material fact to the FOI or opposing counsel, his failure to reveal the change in his clientsÁ criminal charges constituted at the least an error under Rule 3.3

Informal Opinion 95-9 (1999) discussed the situation where a bank paid a lawyer funds for the debt on behalf of the debtor. The bankÁs attorney then wrote to the lawyer seeking to recover the funds paid for the judgment because the monies had come from a corporate account and the debt was against an individual. The Committee advised the lawyer that if he did not have knowledge that the debt was against an individual when he accepted the funds from a corporate account, then the lawyer did not make false statements in stating to the court that he had no knowledge of the status of the debt.

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary Connecticut References: CT Rule 3.3(a)(2)
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary:
Connecticut Commentary:

Informal Opinion 00-14 (2000) discussed the professional responsibilities of a lawyer who, after taking over as successor counsel, discovered information that gave him a reasonable belief that the corporate clientÁs claims were fraudulent and involved criminal conduct by its stockholders.

In Bersani v. Bersani, 41 Conn. Supp. 252, 255, 565 A.2d 1368 (1989), a dissolution of marriage and custody action, the court held that while the plaintiffÁs attorney did not assist the plaintiff in violating a court order, the attorneyÁs refusal to disclose the whereabouts of the client and her minor children served to assist the client in her violation of a court order.

Informal Opinion 94-30 (1994) stated that a lawyer has a duty to advise the court that a clientÁs testimony is based on the contents of illegal wiretapping by the client.

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see 1.6:350]

3.3:400   Disclosing Adverse Legal Authority

Primary Connecticut References: CT Rule 3.3(a)(3)
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary:
Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

3.3:500   Offering False Evidence

Primary Connecticut References: CT Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Kucej v. Statewide Grievance Committee, 239 Conn. 449, 453, 686 A.2d 110 (1996), the court affirmed the reprimand issued by the Statewide Grievance Committee for an attorneyÁs violation of the Rules of Professional Conduct. The reviewing committee found that the evidence failed to establish that the attorney submitted a false financial affidavit in violation of Conn. Rules 3.1 and 3.3, but that there was probable cause to believe that the plaintiff violated other Rules of Professional Conduct.

3.3:510      False Evidence in Civil Proceedings

[The discussion of this topic has not yet been written.]

3.3:520      False Evidence in Criminal Proceedings

[The discussion of this topic has not yet been written.]

3.3:530      Offering a Witness an Improper Inducement

[The discussion of this topic has not yet been written.]

3.3:540      Interviewing and Preparing Witnesses

[The discussion of this topic has not yet been written.]

3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary Connecticut References: CT Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary:
Connecticut Commentary:

Informal Opinion 99-9 (1999) advised an attorney who became aware that the client executed and filed several financial affidavits that were incomplete or inaccurate. The Committee stated that Conn. Rule 3.3 prohibits a lawyer from failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting in a criminal or fraudulent act by the client and from offering evidence that the lawyer knows to be false. The Committee suggested that the lawyer encourage the client to submit a corrected affidavit that included the cash that was missing from the previously filed financial affidavit. For the lawyer to withdraw his representation of the client, the court would have to grant a motion for permission to withdraw.

3.3:610      Duty to Reveal Fraud to the Tribunal

[The discussion of this topic has not yet been written.]

3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary Connecticut References: CT Rule 3.3(c)
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary:
Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary Connecticut References: CT Rule 3.3(d)
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Montalvo v. Nieves, 2001 WL 420488, at *3 (Conn. Super. Apr. 9, 2001), the court held that the two attorneys representing the defendant violated Conn. Rule 3.3(a)(1) and (d) in making false and misleading statements to the court at the ex parte proceeding in which the plaintiff was seeking a change in custody of two minor children. The attorneys stated that it was the opinion of plaintiffÁs counsel in New Jersey that an emergency application for temporary custody should not be brought in New Jersey for reasons concerning the judiciary. Both attorneys violated Conn. Rule 3.3(a)(1) as they knew this information was false. They both knew that it was plaintiffÁs counselÁs opinion that no emergency application for temporary custody should be brought at all, but that if one were brought, she believed that New Jersey had jurisdiction and the application should be brought there, and she was prepared to file such an application in New Jersey. Pursuant to Conn. Rule 3.3(d), the attorneys had the obligation to inform the court of all material facts known to them, whether or not adverse, which would enable the court to make an informed decision.

Anticipation that the court will act on a motion on an ex parte basis is an essential element of an Ëex parte proceedingÓ within the meaning of Conn. Rule 3.3(d). Budney v. Statewide Grievance Committee, 1997 WL 331034, at *7 (Conn. Super. June 9, 1997).

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 3.4
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:
Connecticut Commentary:

3.4:101      Model Rule Comparison

Paragraphs (1) through (6) of the Conn. Rule are identical to Paragraphs (a) through (f) of the Model Rule. The Conn. Rule includes an additional provision, Paragraph (7), which forbids a lawyer to "present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."

3.4:102      Model Code Comparison

With regard to Conn. Rule 3.4(1), DR 7-109(A) provided that "A lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal." DR7-109(B) provided that "A lawyer shall not advise or cause a person to secrete himself . . . for the purpose of making him unavailable as a witness . . ." DR 7-106(C)(7) provided that a lawyer shall not "intentionally or habitually violate any established rule of procedure or of evidence."

With regard to Conn. Rule 3.4(2), DR 7-102(B)(6) provided that a lawyer shall not "participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-109(C) provided that "A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent on the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee or acquiesce in the payment of: (1) Expenses reasonably incurred by a witness in attending or testifying. (2) Reasonable compensation to a witness for his loss of time in attending or testifying. (3) A reasonable fee for the professional services of an expert witness." EC 7-28 stated that "Witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise."

Conn. Rule 3.4(3) is substantially similar to DR 7-106(A) , which provided that "A lawyer shall not disregard . . . a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling."

Conn. Rule 3.4(4) has no counterpart in the Code.

Conn. Rule 3.4(5) substantially incorporates DR 7-106(C)(1), (2), (3) and (4). DR 7-106(C)(2) proscribed asking a question "intended to degrade a witness or other person."

With regard to Conn. 3.4(6), DR 7-104(A)(2) provided that a lawyer shall not "give advice to a person who is not represented other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."

Conn. Rule 3.4(7) has no counterpart in the Code.

3.4:103      Overview

[The discussion of this topic has not yet been written.]

3.4:200   Unlawful Destruction and Concealment of Evidence

Primary Connecticut References: CT Rule 3.4(1)
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Briggs v. Hon. Robert F. McWeeny, 260 Conn. 296, 796 A.2d 516 (2002), the Connecticut Supreme Court affirmed a trial court order holding that a school district's attorney violated Rule 3.4(1) on two occasions: by failing to promptly notify parties in ongoing civil suits against the district, pursuant to the disclosure obligations imposed by Practice Book ã 13-15, of the existence of an engineering report containing opinions harmful to the districtÁs litigation position; and by encouraging the contractor who commissioned the report to withdraw it or treat it as a draft. The attorney had released the report three months after obtaining it, and only after a newspaper had publicized its existence. The Court held that the attorney had tried to Ëalter, destroy or concealÓ a document with potential evidentiary value. It rejected the attorneyÁs arguments that her efforts were an attempt to protect the district from embarrassment in the event the report became subject to public disclosure pursuant to the Freedom of Information Act. It also rejected the attorneyÁs argument that Rule 3.4(1) applied only to Ëactual alteration, destruction or concealment of a document,Ó citing Rule 8.4's provision that an Ëattempt to violate the Rules constitutes misconduct.Ó

3.4:210      Physical Evidence of Client Crime

[The discussion of this topic has not yet been written.]

3.4:300   Falsifying Evidence

Primary Connecticut References: CT Rule 3.4(2)
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

3.4:310      Prohibited Inducements

In U.S. v. Streater, No. 3:97 CR 232, 1999 WL 66534 (D. Conn. 1999), the federal court held that a federal prosecutorÁs agreement with an accomplice who agreed to testify truthfully in return for leniency did not amount to an inducement to a witness that is prohibited by law pursuant to Rule 3.4(2). The court held that 18 U.S.C. ã 201(c)(2), prohibiting Ëpromises of leniency...for their anticipated testimonyÓ does not apply to the federal government. Connecticut Ethics Informal Opinion 99-9 (1999) advised an attorney in a divorce case that, upon learning that his client had failed to report ownership of certain property on financial affidavits, he was obligated to reveal to opposing counsel the inaccuracy of the affidavits under Rule 3.4(1). Failure to disclose would amount to Ëthe concealment of material having potential evidentiary value.Ó

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary Connecticut References: CT Rule 3.4(3)
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Statewide Grievance Committee v. Whitney, No. 92-0511142, 1992 WL 204694 (Aug. 19, 1992), an attorney who repeatedly refused the courtÁs explicit orders to attend pre-trial conferences on behalf of client in a criminal matter was in violation 3.4(3), notwithstanding his otherwise diligent representation and his assertion of his belief that the hearings violated his clientÁs constitutional rights.

3.4:500   Fairness in Pretrial Practice

Primary Connecticut References: CT Rule 3.4(4)
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary:
Connecticut Commentary:

3.4:600   Improper Trial Tactics

Primary Connecticut References: CT Rule 3.4(5)
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary:
Connecticut Commentary:

In State v. Oehman, 212 Conn. 325, 562 A.2d 493 (1989), the Connecticut Supreme Court, in holding that a prosecutorÁs conduct during closing argument of a murder trial was not so egregious that it deprived the accused of his right to a fair trial, found that the attorneyÁs description of the accused as Ëa liar, coward, and a person without principlesÓ did not violate Rule 3.4(5) where such characterizations were supported by the evidence presented at trial. The Court did find, however, that the prosecutorÁs comment that the accused was Ëa spoiled killer with a gunÓ did violate the Rule, because Ë[n]o man on trial for murder can be officially called a murderer . . . until he is adjudged guilty.Ó

In State v. Thompson, 69 Conn.App. 299, 797 A.2d 539 (2002), the Connecticut Supreme Court, in holding that a prosecutorÁs misconduct during a trial for reckless manslaughter deprived the accused of his right to a fair trial, found that the prosecutorÁs attempt to discredit witnesses by suggesting that they were facing impending arrest was a violation of Rule 3.4(5), favorably citing the ABAÁs standard discouraging prosecutors from Ëinjecting issues broader than the guilt or innocence of the accused.Ó

In State v. James, 211 Conn. 555, 560 A.2d 426 (1989), the Connecticut Supreme Court commented that a prosecutor Ëarguably came close to transgressing Rule 3.4[(5)]Ó by stating during closing arguments that ËI would submit that when those girls took the stand, they told the truth,Ó but the statement was not an expression of personal opinion in the context it was made, but rather Ëa contention that the testimony of [the witnesses] was truthful because it was corroborated by the other evidence in the case.Ó

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary Connecticut References: CT Rule 3.4(6)
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Briggs v. Hon. Robert F. McWeeny, 260 Conn. 296, 796 A.2d 516 (2002), the Connecticut Supreme Court affirmed a trial court order holding that a school district's attorney violated Rule 3.4(6) by instructing the district's carpentry contractor to not voluntarily disclose the contents of an engineering report detrimental to district's position in ongoing litigation. The trial court had found that, where the attorney's instructions occurred after termination of the contractor's services, the contractor was a "person other than a client" for the purposes of 3.4(6). Amity RegÁl Sch. Dist. No. 5 v. Atlas Constr. Co., No. 99-0153388, 2001 WL 219724 (Conn. Super. Feb. 9, 2001).

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 3.5
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary:
Connecticut Commentary:

3.5:101      Model Rule Comparison

Conn. Rule 3.5 is substantially similar to Model Rule 3.5, although the Model Rule contains an additional paragraph (c) regarding when a lawyer may not communicate with jurors after discharge of the jury. Comments [1] and [2] to Conn. Rule 3.5 are identical to Model Rule Comments [1] and [4]. The Model Rule contains three additional Comments ([2], [3] and [5]) regarding the prohibition on ex parte communications, communications after jury discharge and the duty to refrain from disruptive conduct.

3.5:102      Model Code Comparison

Paragraphs (1) and (2), although differently worded, incorporate the principles expressed in DR 7-108(A) , DR 7-108(B) and DR 7-110(B). Paragraph (c) is similar to DR 7-106(C) (6), which prohibited undignified or discourteous conduct that is degrading to a tribunal.

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

Primary Connecticut References: CT Rule 3.5(1)
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

3.5:210      Improperly Influencing a Judge

In In re Shana M., 26 Conn. App. 414, 600 A.2d 1385 (1992), the trial judge discovered an English case that had relevancy to the case before him. He delivered the case to petitionerÁs counsel and then to the other two attorneys a short while later. The court held that this was not an improper ex parte communication and did not violate Rule 3.5.

In State v. John, 210 Conn. 652, 557 A.2d 93 (1989), the state's attorney submitted a request for review of police reports to the trial judge in chambers in the absence of other counsel. Because it was nearly time to adjourn when the trial judge finished reviewing the report, he did not return to the bench to make a formal ruling but called defense counsel into chambers to inform them of what had occurred and of his inclination not to disclose a portion of the police report. When the court next convened, defense counsel voiced their objections to the failure to disclose all of the police report before a final ruling was made. The court recognized the impropriety of the ex parte communication but did not find that it resulted in prejudice to the defendants and therefore did not violate Rule 3.5.

3.5:220      Improperly Influencing a Juror

There are no Connecticut cases or opinions addressing improperly influencing a juror. See section 3.5:300 (supra) regarding improper ex parte communications.

3.5:300   Improper Ex Parte Communication

Primary Connecticut References: CT Rule 3.5(2)
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

Since Connecticut adopted the Rules of Professional Conduct in 1986, there is no longer a prohibition in Connecticut on post-trial communications with jurors. Struski v. Big Y Foods, Inc., No. CV970137108S, 2000 WL 1429478, at *1, 2 (Conn. Super. Ct. Sept. 11, 2000).

Informal Opinion 95-7 concluded that it is not a violation of Rule 3.5 for an attorney to communicate ex parte with a Connecticut Commission on Human Rights and Opportunities investigator since the relevant statute expressly permits ex parte communications.

3.5:400   Intentional Disruption of a Tribunal

Primary Connecticut References: CT Rule 3.5(3)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary:
Connecticut Commentary:

Rule 3.5(3) requires that any conduct constituting a violation of the rule must be accompanied by an intention to disrupt. If that intention is not present, then the rule has not been violated. Melnick v. Statewide Grievance Committee, No. 319511, 1995 WL 387579, at *1, 4 (Conn. Super. Ct. Jun. 26, 1995). Sullivan v. Town of Monroe, No. CV000370545, 2001 WL 951363, at *1, 14 (Conn. Super. Ct. Jul. 17, 2001) held that disrespectful and confrontational remarks to a judicial authority in and of themselves constitute a violation of Rule 3.5(3). In Sullivan, the attorney made untrue and gender biased statements resulting in a violation of Rule. 3.5(3).

Prucker v. Statewide Grievance Committee, No. CV940541436, 1995 WL 356758, *1 (Conn. Super. Ct. Jun. 9, 1995) held that an attorney violated Rule 3.5(3) when he shouted an expletive, exited the hearing room and refused to return after being requested to do so by the commissioner. The court held that the plaintiff's behavior was intended to disrupt the hearing thereby violating Rule 3.5(3).

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 3.6
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:
Connecticut Commentary:

3.6:101      Model Rule Comparison

Conn. Rule 3.6 and Model Rule are somewhat similar. Both Rules prohibit extrajudicial statements that are reasonably expected to be disseminated publicly, if the lawyer knows or reasonably should know that the statements will have a Ësubstantial likelihood of materially prejudicing an adjudicative proceeding.Ó Conn. Rule 3.6(a) and Model Rule 3.6(a). Both Rules permit a lawyer to state certain information. Conn. Rule 3.6(b)(3) permits a lawyer to state Ëthat an investigation of the matter is in progress.Ó

Under Rule 3.6(c), a lawyer may make a statement Ëthat a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyerÁs client,Ó to the extent necessary to mitigate recent adverse publicity.Ó Rule 3.6(d) provides Ë[n]o lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).Ó

3.6:102      Model Code Comparison

Conn. Rule 3.6 is similar to Model Code DR 7-107, except as follows. First, DR 7-107 was limited to extrajudicial statements regarding criminal matters, whereas Conn. Rule 3.6 concerns civil as well as criminal matters. Second, DR 7-107(B) established a time frame during which certain extrajudicial statements (listed in DR 7-107(B)(1)-(6)) were impermissible: Ëfrom the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial.Ó Third, the list of prohibited extrajudicial statements contained in DR 7-107(B) is similar to the Conn. Rule 3.6(b). The Connecticut Rule provides more detail in what types of statements are prohibited and contains additional provisions not contained in the Model Code. Conn. Rule 3.6(b)(5) prohibits a lawyer from making a statement relating to Ë[i]nformation the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and if disclosed create a substantial risk of prejudicing an impartial trial.Ó Conn. Rule 3.6(b)(6) also prohibits a lawyer from disclosing the fact that a person has been charged with a crime, without a statement Ëexplaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.Ó Fourth, both Rules permit certain information to be disclosed. Both Rules contain many of the same or similar categories of information, except Connecticut provides for the disclosure of information that is particularly germane to civil proceedings (i.e., nature of the claim, scheduling or result of the next step in litigation) and in criminal cases, the Ëidentity of investigating and arresting officers or agencies and the length of the investigation.Ó The Model Rule permits disclosure of the identity of the victim of the crime and the use of weapons.

3.6:200   Improper Extrajudicial Statements

Primary Connecticut References: CT Rule 3.6(a)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Gifford v. Freedom of Information Commission, 42 Conn.Supp. 291, 617 A.2d 479 (Conn.Super. 1992), the court noted pursuant to Rule 3.6, the only information that could be permissibly disclosed from an arrest report is the name and address of the person arrested, date, time, and place of arrest and offense for which person was arrest.

In Guerrini v. Statewide Grievance Committee, No. CV 000503192, 2001 WL 417337 (Conn. Super. 2001), the court noted the proper analysis under Rule 3.6: ËFirst, the statement must be one that a reasonable person would ÇexpectÁ to be publicized by the media. Second, the lawyer must ÇknowÁ or Çreasonably knowÁ that its dissemination will have a Çsubstantial likelihoodÁ of prejudicing the proceeding. Third, the prejudice must be ÇmaterialÁ.Ó Guerrini, 2001 WL at ** 2 (citing G. Hazard Jr., The Law of Lawyering (3rd Ed. 2001) ã 32.5, p. 32-9.)).

Dillon v. Bailey, 45 F.Supp.2d 167 (D.Conn. 1999) stated the general prohibition of Rule 3.6: Ëlaw enforcement officers and prosecutors should not comment on the confidential details of their investigations.Ó Dillon, 45 F.Supp.2d at 176.

3.6:300   Permissible Statements

Primary Connecticut References: CT Rule 3.6(b)
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Hultman v. Blumenthal, No. 438659, 2000 WL 1687365 (Conn.Super. 2000), the court held that Rule 3.6 was inapplicable to the case at hand. In Hultman, the defendant/Attorney General and the Department of Social Services charged the plaintiffs with cheating a nursing home out of more than one million dollars. The defendant issued a ËNews Release,Ó subsequently posted on the Attorney GeneralÁs website, containing a summary of the charges against the plaintiffs as well as the statement: ËThis case is one of the most reprehensible and outrageous Medicaid frauds we have seen.Ó Hultman, 2000 WL at **1. The defendant also spoke with the Hartford Courant and stated that the plaintiffs were Ëguilty of the most ÇegregiousÁ and ÇblatantÁ abuse of Medicaid funds he had ever seen.Ó Id. Upon a hearing before a hearing officer, the plaintiffs were ordered to reimburse the monies. The plaintiff brought an action against the defendant, alleging among other things that he violated Rule 3.6. The court held that Rule 3.6 was inapplicable because the Ëcomments at issue concerned an administrative hearing that would eventually be heard by a hearing officer rather than a jury...[therefore] there is no reason to expect that [the defendantÁs] comments would be likely to influence the actual outcome of this proceeding.Ó The decision also cited the situations Rule 3.6 was established to address: Ë(1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire.Ó Id. at **5 (quoting Gentile v. State Bar, 501 U.S. 1030, 1075 (1991)).

In Informal Opinion 89-16 (1989), the Committee opined that certain extrajudicial statements were permissible under Rule 3.6(c). In this case, the attorney held a press conference shortly he filed a wrongful death suit. In the press conference, the attorney stated, among other things, that an investigation revealed that the decedents had conducted themselves in a Ë safe and reasonable manner and that fault lay entirely with the defendant municipality.Ó The Opinion held that the statement fell within the protections of Rule 3.6(b)(1) and (b)(3) permitting statements about the general nature of the claim and the status of an investigation. The Committee held that another statement regarding the defendant municipality Ëimproperly engaging in a smear campaign by purposely leaking test resultsÓ fell within Rule 3.6(b)(1). Therefore, the statement was prohibited. The Opinion, however, noted that the statement would not have a Ësubstantial likelihood of materially prejudicing the trial.

3.6:400   Responding to Adverse Publicity

Primary Connecticut References: CT Rule 3.6(c)
Background References: ABA Model Rule 3.6(c), Other Jurisdictions
Commentary:
Connecticut Commentary:

Connecticut Rule 3.6 does not contain a provision regarding this subject.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 3.7
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:
Connecticut Commentary:

3.7:101      Model Rule Comparison

The Conn. Rule 3.7 is identical to the Model Rule.

3.7:102      Model Code Comparison

Paragraph (a) of the Conn. Rule preserves the general substance of DR 5-101(B) and DR 5-102 regarding the prohibition of serving as both advocate and witness, albeit with a number of changes of both language and substantive detail. Thus, the Rule addresses situations where the lawyer is "likely to be a necessary witness," while DR 5-101(B) and DR 5-102(A) say "ought to be called as a witness," and DR 5-102(B) says "may be called as a witness." The latter two provisions distinguish between circumstances where the lawyer will be a witness for his client and for one not his client, respectively; the Rule drops this distinction. The Rule also omits the distinction, drawn in DR 5-101(B) and DR 5-102, between a lawyer's undertaking a representation that presents the advocate/witness problem and the possible need to withdraw when the problem arises after the representation is undertaken. Finally, paragraph (a) of the Rule collapses the four exceptions of DR 5-101(B) to three (combining (2) and (3)).

Paragraph (b) eliminates the automatic imputation of a lawyer's disqualification to the lawyer's firm imposed by DR 5-101(B) and DR 5-102(A) & (B) , and limits imputation to cases in which the lawyer/witness's testimony would so conflict with the client's interests that he would be disqualified under Rule 1.7 or 1.9 from representing the client.

3.7:200   Prohibition of Advocate as Witness

Primary Connecticut References: CT Rule 3.7(a)
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

Unless the moving party persuades the court that an attorneyÁs testimony is truly necessary, a court will not grant a motion to disqualify. In Nicholas v. Wilton Zoning Board of Appeals, 2001 WL 1200339, *1 (Conn. Super. Sept. 14, 2001), plaintiffÁs counsel had previously acted as town counsel and had drafted an opinion letter advising the town planner regarding the lot of land currently in dispute by plaintiff-owner. The defendant failed to show that the testimony of plaintiffÁs counsel was necessary and the court denied the defendantÁs motion to disqualify.

CT Rule 3.7 requires an attorney to withdraw if he or she reasonably foresees that he will be called as a witness to testify on a material matter. State v. Crespo, 246 Conn. 665, 685, 718 A.2d 925 (1998). The court in Desarbo & Reichert, P.C. v. Cardow, 1996 WL 166431, *1 (Conn. Super. Mar. 22, 1996) described the dual test for necessity: first the proposed testimony must be relevant and material; second, it must be unobtainable elsewhere. In Kupersmith v. Executive Risk Specialty Ins. Co., 2000 WL 1824165, *1 (Conn. Super. Nov. 17, 2000), the court held that the moving party did not bear its burden of proving that testimony of opposing partyÁs counsel was necessary and denied the motion to disqualify.

Conn. Rule 3.7 only bars representation Ëat a trial.Ó The court in State v. Straub, 1999 WL 989420, *1 (Conn. Super. Feb. 26, 1999) recognized that limited disqualification may be appropriate in some circumstances. The court held that defendantÁs attorney could not represent the defendant before the fact-finder because he was a necessary witness. However, defendantÁs attorney could continue to provide legal advice and make arguments before the court and act as co-counsel in all other respects. Likewise, in Roosevelt Building Product Co. v. Morin Corp., 2001 WL 1738844, *1 (Conn. Super. Sept. 5, 2001), the defendant sought to disqualify plaintiffÁs counsel because the attorney was a Ënecessary witnessÓ as he was involved in the disputed commercial real estate closing. The court stated that defendant failed to persuade the court that plaintiffÁs counselÁs testimony was truly necessary, but ordered the plaintiff to have separate counsel available to act as trial counsel for the plaintiff if the attorney was called as a witness. In Elliot v. Stuart, 1996 WL 488878, *1 (Conn. Super. Aug. 9, 1996), the fact that the plaintiffÁs law firm only employed three lawyers, all of whom had a conflict under CT Rule 3.7, made disqualification of the entire firm a substantial hardship on plaintiff. However, those lawyers were needed to provide testimony at trial. Therefore, the court ordered the plaintiff to secure separate trial counsel.

The court failed to grant a motion to disqualify in David M. Somers & Assocs. v. Kendall, 2001 WL 254267, *1 (Conn. Super. Feb. 23, 2001). The defendant claimed that plaintiffÁs counsel would be a necessary witness, yet the current state of pleadings and lack of an evidentiary hearing did not allow the court to consider the significance of the matters, the weight of the testimony and availability of other evidence. Therefore, the court was unable to make the determination that the testimony of plaintiffÁs counsel was truly necessary.

In Berkowitz & Balbirer, P.C. v. M/L Ridgeland Assoc., 1997 WL 728899, *1 (Conn. Super. Nov. 14, 1997), the court granted plaintiffÁs motion to disqualify defendantÁs attorney, as he prepared the agreement in question and would be called as a witness regarding the defendantÁs understanding and agreement of the obligation, which was the subject of the law suit.

In Sandberg v. Sandberg, 2000 WL 1701806, *1 (Conn. Super. Oct. 19, 2000), the court did not disqualify defendantÁs attorney. CT Rule 3.7 did not preclude the attorney from representing defendant at trial because disqualification would work a substantial hardship on the defendant, as the attorney had represented her for the previous three years in this marital dissolution action, and because the attorneyÁs testimony would not be required at the trial of the case if the plaintiffÁs motion seeking summary enforcement was denied.

Conn. Rule 3.7 applies in criminal matters. In State v. Crespo, 246 Conn. 665, 684, 718 A.2d 925 (1998), the defendant appealed his murder conviction, alleging that a conflict of interest existed because the prosecuting attorney participated in the initial investigation that lead to his arrest. According to the defendant, the prosecutorÁs participation gave rise to the possibility that he may have been called as a witness. The court concluded that there was not an actual conflict and that the trial court did not fail to inquire into a potential conflict. In State v. Thompson, 20 Conn. App. 290, 296, 567 A.2d 837 (1989), the court held that a Ëdefendant must demonstrate a compelling need before a participating prosecutor will be permitted to testify.

The United States Bankruptcy Court for the District of Connecticut held that CT Rule 3.7 does not include any provision analogous to District Rule 33(b)(2), regarding advocate-witnesses. In re Galaxy Assoc. v. Sheffield Corp., 114 B.R. 11 (1990).

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

Primary Connecticut References: CT Rule 3.7(b)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Hampton v. Spencer, 2002 WL 442306, *1 (Conn. Super. Feb. 21, 2002), the court granted plaintiffÁs motion to disqualify the law firm from continuing to represent the defendant. The plaintiff alleged that the defendant owed him money in connection with services rendered in obtaining a divorce. The defendantÁs counterclaim alleged attorney malpractice. PlaintiffÁs argument for disqualification was based on the fact that defendantÁs counselÁs firm acted as successor counsel for the defendant in the underlying divorce action. Therefore, it was foreseeable, if not highly likely, that the conduct of defendantÁs counsel would require him to testify. In granting the motion to disqualify, the court found the foreseeable testimony to be related to the contested issues, related to the nature and value of legal services required and that disqualification would not work substantial hardship on the defendant.

CT Rule 3.7(b) provides that Ë[a] lawyer may act as advocate in a trial in which another lawyer in the lawyerÁs firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.Ó In Closkey v. Estate of Terrien, 1996 WL 469732, *1 (Conn. Super. Aug. 5, 1996), the court denied plaintiffÁs motion to disqualify defendantÁs counselÁs law firm because neither Rule 3.7 nor Rule1.7 were violated, and Rule 1.9 did not apply. Absent a finding of a conflict of interest under Rules 1.7 or 1.9, Rule 3.7 does not bar another member of a law firm from representing a party at trial, even though one of the lawyers in the firm is to be called at trial. Evans v. Assoc. of Norwalk School Admin., 1995 WL 384629, *1 (Conn. Super. June 20, 1995).

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 3.8
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:
Connecticut Commentary:

3.8:101      Model Rule Comparison

Model Rule 3.8 and Conn. Rule 3.8 contain a number of identical provisions. There are, however, two differences between the Rules. Model Rule 3.8(a) - (d) and Conn. Rule 3.8 (1) - (4) are identical regarding the four special responsibilities a prosecutor shall perform, including, charging a person only if supported by probably cause, ensuring that the accused rights are respected, refraining from seeking a waiver of the accusedÁs rights, and making timely disclosures to the defense regarding certain evidence or information.

Model Rule 3.8 (e) is not contained in Conn. Rule 3.8. The Model Rule establishes when a prosecutor may subpoena a lawyer in a grand jury or other criminal proceeding to testify about a present or former client.

Model Rule 3.8 (f) and Conn. Rule 3.8(5) contain identical wording, except for the Model RuleÁs additional language prefacing the subsection. Both Rule admonish a prosecutor to Ëexercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons, assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.Ó The Model Rule, however, provides for an exception to this rule in circumstances where the statements are Ënecessary to inform the public of the nature and extent of the prosecutorÁs action and that serve a legitimate law enforcement purpose.Ó The Model Rule also bars a prosecutor from making extrajudicial statements that would Ëhave a substantial likelihood of heightening public condemnation of the accused....Ó

3.8:102      Model Code Comparison

There is no direct counterpart to Conn. Rule 3.8 in the Model Code. Model Code DR 7-103 does contain analogues to Conn. Rule 3.8(1) and Conn. Rule 3.8(4). Similar to Conn. Rule 3.8(1), DR 7-103(A) mandates that a public prosecutor or other government lawyer Ëshall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.Ó Model Code DR 7-103(B) is similar to Conn. Rule 3.8(4), requiring a prosecutor or other government lawyer to make timely disclosure to the defendant of evidence or information negating guilt, mitigating the crime charged, or reducing sentencing.

3.8:200   The Decision to Charge

Primary Connecticut References: CT Rule 3.8(1)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Massameno v. Statewide Grievance Committee, 234 Conn. 539, 663 A.2d 317 (1995), the court noted that an attorney violated Rule 3.8(1) by Ëprosecuting the case without probable cause to believeÓ the defendant was guilty.

In Informal Opinion 00-24 (2000), the Committee analyzed the propriety of a dismissal or nolle of a criminal case where the accused releases civil claims against the state. The Opinion held that in situations where the prosecutor either knows or should know that probable cause is absent or where the prosecutorÁs pursuit of the case is based primarily on his desire to seek a civil release, Ëa prosecutor may not condition an offer to dismiss or nolle a criminal matter upon either (1) a defendantÁs stipulation or admission that probable cause existed for his or her arrest or (2) a defendantÁs release or agreement to release civil claims against the arresting officers or others.Ó

3.8:300   Efforts to Assure Accused's Right to Counsel

Primary Connecticut References: CT Rule 3.8(2)
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary Connecticut References: CT Rule 3.8(3)
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary:
Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

3.8:500   Disclosing Evidence Favorable to the Accused

Primary Connecticut References: CT Rule 3.8(4)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary:
Connecticut Commentary:

In State of Connecticut v. Richardson, 204 Conn. 654, 529 A.2d 1236 (1987), the court highlighted that pursuant to Rule 3.8, a stateÁs attorney must reveal information known to him about an informantÁs perjury in a criminal case.

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary Connecticut References: CT Rule 3.8(5)
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Dillon v. Bailey, 45 F.Supp.2d 167 (D.Conn. 1999), the plaintiff was an Inspector with the Office of the Chief StateÁs Attorney for the State of Connecticut. The plaintiff brought a First Amendment challenge to the speech-limiting directive issued by the Chief StateÁs Attorney. The plaintiff reported evidence that FBI workers, with whom he collaborated on a joint task force, had engaged in unlawful conduct. The Chief StateÁs AttorneyÁs rationale for banning certain speech was, in part, to prevent disclosure prohibited by Rules 3.6 and 3.8(5). The court noted that the plaintiff, in his report, was not acting within the ordinary scope of his duties. Rather, he was acting as a complaining witness highlighting evidence that needed to be investigated. The court held that the plaintiff Ëwas not acting in a capacity that implicated the ethical responsibilities or obligations of those investigating or prosecuting criminal activity or charges whose publicly expressed views could potentially compromise defendantÁs fair trial rights.Ó Dillon, 45 F.Supp.2d at 176

3.8:700   Issuing a Subpoena to a Lawyer

Primary Connecticut References: CT Rule 3.8
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary:
Connecticut Commentary:

Connecticut Rule 3.8 does not contain a provision regarding this subject.

3.8:800   Making Extrajudicial Statements

Primary Connecticut References: CT Rule 3.8
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Gifford v. Freedom of Information Commission,, 42 Conn. Supp. 291, 617 A.2d 479 (1992), the court noted that Rules 3.6 and 3.8 establish what information a prosecutor may disclose in a criminal case. In Gifford, the court noted that disclosure, during the pendency of the prosecution, of certain information (i.e., data in arrest report other than name, address of person arrested, date and place of arrest, and offense charged) would violate Rule 3.8. The court emphasized that Ëa prosecutor exposes his office to grievance complaints if he permits the unabridged disclosure of police arrest reports.Ó Gifford, 617 A.2d at 483.

3.8:900   Peremptory Strikes of Jurors

Primary Connecticut References: CT Rule 3.8
Background References: Other Jurisdictions
Commentary:
Connecticut Commentary:

Connecticut Rule 3.8 does not contain a provision regarding this subject.

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:
Connecticut Commentary:

3.9:101      Model Rule Comparison

Conn. Rule 3.9 is identical to MR 3.9.

3.9:102      Model Code Comparison

This Rule had no direct counterpart in the Model Code. DR 7-106(B)(1), however, provided that "[i]n presenting a matter to a tribunal, a lawyer shall disclose . . . [u]nless privileged or irrelevant, the identities of the clients he represents and of the persons who employed him." EC 7-15 stated that a lawyer "appearing before an administrative agency . . . has the continuing duty to advance the cause of his client within the bounds of the law." EC 7-16 stated that "[w]hen a lawyer appears in connection with proposed legislation, he . . . should comply with applicable laws and legislative rules." And EC 8-5 stated that "[f]raudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a . . . legislative body . . . should never be participated in . . . by lawyers."

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary Connecticut References: CT Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:
Connecticut Commentary:

In Somers v. Statewide Grievance Committee, 245 Conn. 277, 288 fn.16, 715 A.2d 712 (1998), the Connecticut Supreme Court explained that Rule 3.9 applies not only when an attorney is representing a client, but also when an attorney is advocating for his or her own interests.

Formal Opinion 37 (1988) determined that when an attorney holds a municipal office, neither she nor any attorney from her firm may represent clients before any municipal board, commission, authority, or agency if there is reason to believe that the public would reasonably misunderstand the dual roles and perceive a detriment to its interests because of it. If the entity before which the lawyer would appear is subordinate to the entity on which the lawyer serves, or vice versa, unless the subordinate entity is of a wholly advisory or ceremonial nature, there is too great a likelihood that impropriety will be perceived. Id.

Informal Opinion 91-17 (1991) instructed that a legislator whose assignments confer particular responsibility for a state agency should be very cautious before accepting an engagement to represent a client before the agency. Legislators with significant influence over an agency ought to presume initially that representation would not be in the public interest. Id. Nonetheless, there may be situations where such a legislator, after a review of all the factors, may take the position that representation is possible. Id. In circumstances where a legislator should not accept an engagement, the members of the legislatorÁs firm should approach the engagement with caution and carefully consider the character of the engagement, the status of the legislator in the firm, and the various factors present. Id.