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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Louisiana Legal Ethics

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:

3.1:101      Model Rule Comparison

LRPC 3.1 is adopted almost exactly from the text of MR 3.1. The only difference is that, while the Louisiana Rule requires that the lawyer have a “good faith” basis for bringing a proceeding, the Model Rule requires that the lawyer have a basis for bringing such an action “that is not frivolous.”

3.1:102      Model Code Comparison

The first sentence of LRPC 3.1 provides that a lawyer may not bring an action or controvert an issue without good reason, including “a good faith argument for an extension, modification or reversal of existing law.” The Model Code provides the same. DR 2-109(A) and DR 7-102(A)(1) prevent a lawyer from taking steps in litigation merely to harass or injure someone. DR 2-109(B) and DR 7-102(B)(2) prevent a lawyer from knowingly advancing a claim that is not warranted under the law, unless it can be “supported by good faith argument for an extension, modification, or reversal of existing law.”

3.1:200   Non-Meritorious Assertions in Litigation

Primary Louisiana References: LA Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL § 170, Wolfram § 11.2

This section has not yet been completed.

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

Primary Louisiana References: LA Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:151, ALI-LGL § 170, Wolfram § 11.2

This section has not yet been completed.

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

Primary Louisiana References: LA Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL §§ 77, 170, Wolfram § 11.2

This section has not yet been completed.

3.1:500   Complying with Law and Tribunal Rulings

Primary Louisiana References: LA Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 16:1201, ALI-LGL § 165, Wolfram §§ 12.1.3, 13.3.7

This section has not yet been completed.

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:

3.2:101      Model Rule Comparison

The text of LRPC 3.2 is identical to that in its counterpart, MR 3.2.

3.2:102      Model Code Comparison

LRPC 3.2 requires lawyers to make “reasonable efforts to expedite litigation.” While the Model Rule does not impose the same affirmative duty, DR 7-101(A)(1) provides that a lawyer does not violate the Disciplinary Rules if he is “. . . punctual in fulfilling all professional commitments. . . ” DR 1-102(A)(5) imposes a negative duty on lawyers, preventing them from engaging in conduct that is “prejudicial to the administration of justice.”

3.2:200   Dilatory Tactics

Primary Louisiana References: LA Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 166, Wolfram § 11.2.5

This section has not yet been completed.

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary Louisiana References: LA Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 166, Wolfram § 11.2.5

This section has not yet been completed.

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 3.3
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:

3.3:101      Model Rule Comparison

Paragraphs (1), (3) and (4) of LRPC 3.3(a) are adopted exactly from the text of MR 3.3(a)(1), (3) and (4). LRPC 3.3(a)(2) states that a lawyer shall not knowingly “[c]onceal or knowingly fail to disclose that which he is required by law to reveal” and requires an attorney who knows his client “has perpetrated a fraud on a tribunal” to ask his client to rectify the matter and, if his client refuses, to reveal the fraud. MR 3.3(a)(2) provides that a lawyer “shall not knowingly. . . fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.” Although MR 3.1 does not require the lawyer to offer his client the opportunity to rectify the situation before he acts, Comments 5 and 11 to MR 3.3 advise the lawyer to try to persuade his client to rectify the situation before he takes action.

LRPC 3.3(b) provides that duties imposed by Paragraphs (a)(1) and (3) apply until the end of the hearing while those in Paragraphs (a)(2) and (4) have an unlimited duration. MR 3.3(b) provides that all of the duties imposed by its Paragraph (a) terminate with the conclusion of the proceeding. Additionally, while disclosure under LRPC 3.3(a)(1) and (3) is prevented in situations covered by LRPC 1.6, MR 3.3(b) requires disclosure in all situations provided for in MR 3.3(a), despite application of the MR 1.6 privilege.

The text of LRPC 3.3(c) and (d) are identical to that in their counterparts, MR 3.3(c) and (d).

3.3:102      Model Code Comparison

LRPC 3.3(a)(1) forbids a lawyer from knowingly making a “false statement of fact or law to a tribunal.” The counterpart to this Rule in the Model Code is DR 7-102(A)(5), which prevents a lawyer from knowingly making a “false statement of law or fact.” The Model Code does not only restrict statements made to a tribunal, as does the Louisiana Rule. The spirit of LRPC 3.3(a)(1) is reflected in other sections of the Model Code. For instance, DR 1-102(A)(4) deems it misconduct for a lawyer to engage in “dishonesty, fraud, deceit, or misrepresentation.” DR 1-102(A)(5) prevents a lawyer from engaging in “conduct that is prejudicial to the administration of justice.” DR 7-102(A)(4) prevents a lawyer from knowingly using “perjured testimony or false evidence.”

LRPC 3.3(a)(2) provides that a lawyer shall not knowingly “conceal or knowingly fail to disclose that which he is required by law to reveal. . . “ The Rule also provides that, when it is the client who has perpetrated a fraud on the tribunal, the lawyer must first allow his client the opportunity to rectify the same and, if not, he must “reveal the fraud to the affected person or tribunal.” Like the first provision in Paragraph (a)(2), DR 7-102(A)(3) prevents a lawyer from concealing or knowingly failing to disclose “that which he is required by law to reveal.” Furthermore, DR 7-102(B)(1) provides that a lawyer who knows his client has perpetrated a fraud on the tribunal or another person must first allow the client to rectify the matter and, if not, he must reveal the fraud to the affected person unless it is a protected communication. Although this Disciplinary Rule places the same duties upon the lawyer as LRPC 3.3(a)(2), it exceeds the Louisiana Rule by applying to false statements made both to a tribunal and to another person. While DR 7-102(B)(1) does not require the lawyer to disclose fraud in cases where the information is protected by a privilege, LRPC 3.3 does not include a similar exception. A much more limited exception for privileged information is set out in LRPC 3.3(b), which is discussed below.

Additionally, DR 7-109(A) forbids a lawyer from suppressing evidence that he or his client has an obligation to produce. DR 1-102(A)(4) and (5), noted above, would also be applicable to this scenario. The duty placed upon lawyers by the Model Code also exceeds that contained in LRPC 3.3(a)(2) by its requirement, in DR 7-102(B)(2), that the lawyer disclose to the tribunal information he may have that a third person has perpetrated a fraud upon the tribunal.

LRPC 3.3(a)(3) forbids a lawyer from knowingly failing to disclose “legal authority in the controlling jurisdiction” which the lawyer knows is directly adverse to his position and is not otherwise disclosed. The Model Code prohibits the same conduct in DR 7-106(B)(1).

LRPC 3.3(a)(4) forbids a lawyer from knowingly offering evidence he knows to be false. If the lawyer learns of the falsity after the evidence has been offered, LRPC 3.3(a)(4) places an affirmative duty on the lawyer to take remedial measures. While there is no direct counterpart in the Model Code, several Disciplinary Rules prohibit the same conduct.

As noted above, DR 1-102(A)(4) and (5) prevent a lawyer from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation” and engaging “in conduct that is prejudicial to the administration of justice.” DR 7-102(A)(4) prevents the lawyer from knowingly using “perjured testimony or false evidence.” DR 7-102(A)(7) prevents the lawyer from advising his client to engage in illegal or fraudulent conduct. The Model Code differs from LRPC 3.3(a)(4) in that it does not specifically guide the conduct of a lawyer who learns after the fact that false evidence has been offered.

LRPC 3.3(b) provides the duration for which the duties described in Paragraph (a) are applicable. Most importantly, Paragraph (b) provides that the information addressed by Paragraphs (a)(2) and (4) must be disclosed, even if it requires disclosure of information protected by Rule 1.6. Unlike the Louisiana Rule, the Model Code does not require disclosure of protected information. DR 7-102(B)(1) and EC 8-5.

LRPC 3.3(c) allows the lawyer to refuse to disclose evidence that he believes is false. The Model Code has no counterpart. Instead, EC 7-25 states that a lawyer is “not justified in consciously violating [rules of evidence and procedure] and he should be diligent in his efforts to guard against his intentional violation of them.” Additionally, DR 7-101(B)(2) allows a lawyer to refuse to “aid or participate in conduct he believes to be unlawful, even though there is some support for an argument that the conduct is legal.”

Finally, LRPC 3.3(d) requires that, in ex parte hearings, an attorney reveal all material facts which are known to him, whether adverse or not. Although the Model Code has no counterpart, DR 1-102(A)(5) prevents a lawyer from engaging in conduct that is “prejudicial to the administration of justice.”

3.3:200   False Statements to a Tribunal

Primary Louisiana References: LA Rule 3.3(a)(1) & (2)
Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5

This section has not yet been completed.

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary Louisiana References: LA Rule 3.3(a)(2)
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram §

This section has not yet been completed.

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

This section has not yet been completed.

3.3:400   Disclosing Adverse Legal Authority

Primary Louisiana References: LA Rule 3.3(a)(3)
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary: ABA/BNA § 4:301, ALI-LGL § 171, Wolfram § 12.8

This section has not yet been completed.

3.3:500   Offering False Evidence

Primary Louisiana References: LA Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL §§ 175-180, Wolfram §§ 12.3, 12.43, 12.5

This section has not yet been completed.

3.3:510      False Evidence in Civil Proceedings

This section has not yet been completed.

3.3:520      False Evidence in Criminal Proceedings

This section has not yet been completed.

3.3:530      Offering a Witness an Improper Inducement

This section has not yet been completed.

3.3:540      Interviewing and Preparing Witnesses

This section has not yet been completed.

3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary Louisiana References: LA Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 117A-B, Wolfram §§ 12.5, 12.6, 13.3.6

This section has not yet been completed.

3.3:610      Duty to Reveal Fraud to the Tribunal

This section has not yet been completed.

3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary Louisiana References: LA Rule 3.3(c)
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5

This section has not yet been completed.

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary Louisiana References: LA Rule 3.3(d)
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 172 , Wolfram § 12.7

This section has not yet been completed.

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 3.4
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:

3.4:101      Model Rule Comparison

The text of LRPC 3.4 is identical to that in its counterpart, MR 3.4.

3.4:102      Model Code Comparison

LRPC 3.4(a) prevents a lawyer from obstructing access to evidence, destroying documents with potential evidentiary value or assisting another in doing the same. While the Model Code has no exact counterpart, DR 1-102(A)(4) and (5) prevent a lawyer from engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation” and engaging in conduct which prejudices the administration of justice. DR 7-106(C)(7) forbids a lawyer appearing before a tribunal from “intentionally or habitually violating any established rule of procedure or evidence.” DR 7-109(A) prevents a lawyer from suppressing evidence that he has an obligation to reveal and DR 7-109(B) prevents a lawyer from advising witnesses to leave the jurisdiction so as to be unavailable.

LRPC 3.4(b) prevents lawyers from falsifying evidence, assisting witnesses in testifying falsely and offering unlawful inducements to witnesses. Each facet of this Paragraph is addressed by the Model Code. DR 7-102(A)(6) prevents lawyers from creating or preserving false evidence. DR 7-109(C) prevents a lawyer from offering payment to witnesses contingent on the content of their testimony. DR 7-102(A)(4) prevents a lawyer from knowingly using perjured testimony, while DR 7-102(B) requires a lawyer who knows that his client or a third party has perpetrated fraud upon a tribunal take steps to reveal the fraud. As noted above, the principles of DR 1-102(A)(4) and (5) would also be invoked in this context.

LRPC 3.4(c) prevents the lawyer from knowingly “disobey[ing] an obligation under the rules of a tribunal. . .” Likewise, DR 7-106(A) provides that a lawyer may not disregard a rule or ruling of a tribunal and he may not advise his client to do so. DR 7-106(C)(5) prevents a lawyer from ignoring local practices or customs of a tribunal without notice. Finally, DR 1-102(A)(5) is similar in that it prevents a lawyer from engaging in conduct that is “prejudicial to the administration of justice.”

LRPC 3.4(d) regulates a lawyer’s pretrial conduct. The Model Code has no counterpart. The only Disciplinary Rules which could be interpreted to apply to such a situation are DR 1-102(A)(5), 7-106(A) and 7-106(C)(7), all discussed above.

LRPC 3.4(e) regulates a lawyer’s conduct during trial. The Model Code’s counterpart is found in DR 7-106(C)(1), (3) and (4). DR 7-106(C)(2) exceeds LRPC 3.4(e) by preventing a lawyer from asking an irrelevant question which is meant only to degrade a witness or someone else. In Louisiana, a question that alludes to an irrelevant issue may be precluded under LRPC 3.4(e). Like LRPC 3.4(e), DR 7-106(C)(1) prevents a lawyer before a tribunal from alluding to any matter he has no reasonable basis to believe is relevant or that will not be supported by admissible evidence. DR 7-106(C)(3) prevents a lawyer from asserting his personal knowledge of the facts in issue unless he is testifying as a witness, like LRPC 3.4(e). Both LRPC 3.4(e) and DR 7-106(C)(4) prevent a lawyer from asserting his or her personal opinion on certain issues during trial. Although DR 7-106(C)(4) prevents a lawyer from asserting his personal opinion, it does provide the lawyer with an opportunity to argue such issues on the evidence.

Finally, LRPC 3.4(f) prevents a lawyer from asking someone not his client to refrain from giving information unless the person is an employee or relative of a client and the lawyer “reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.” The Model Code, again, has no counterpart. Instead, DR 7-104(A)(2) prevents a lawyer from advising someone without legal representation if that person’s interests might be in conflict with those of his client. DR 7-109(B) prevents a lawyer from advising a person in an effort to make him unavailable as a witness. As discussed above, DR 1-102(A)(5) prevents a lawyer from engaging in “conduct that is prejudicial to the administration of justice.”

3.4:103      Overview

This section has not yet been completed.

3.4:200   Unlawful Destruction and Concealment of Evidence

Primary Louisiana References: LA Rule 3.4(a)
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL §§ 178, 179, Wolfram § 12.3, 12.4

This section has not yet been completed.

3.4:210      Physical Evidence of Client Crime

This section has not yet been completed.

3.4:300   Falsifying Evidence

Primary Louisiana References: LA Rule 3.4(b)
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 178, Wolfram § 12.3

This section has not yet been completed.

3.4:310      Prohibited Inducements

This section has not yet been completed.

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary Louisiana References: LA Rule 3.4(c)
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary: ABA/BNA § 61:1231, ALI-LGL § 165, Wolfram § 12.1

This section has not yet been completed.

3.4:500   Fairness in Pretrial Practice

Primary Louisiana References: LA Rule 3.4(d)
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL § 166, Wolfram § 12.4

This section has not yet been completed.

3.4:600   Improper Trial Tactics

Primary Louisiana References: LA Rule 3.4(e)
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary: ABA/BNA § 61:1361, ALI-LGL § 167, Wolfram § 12.1

This section has not yet been completed.

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary Louisiana References: LA Rule 3.4(f)
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary: ALI-LGL § 176, Wolfram § 12.4.2

This section has not yet been completed.

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 3.5
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary:

3.5:101      Model Rule Comparison

The text of LRPC 3.5 is identical to that in its counterpart, MR 3.5.

3.5:102      Model Code Comparison

LRPC 3.5(a) prohibits a lawyer from seeking to influence judicial officials, jurors and prospective jurors through means prohibited by law. The Model Code has several similar provisions. DR 7-108 prevents a lawyer from communicating with a juror or venireman before the trial, limits the lawyer’s communications during the trial to allow communication only during the course of the proceedings and, after discharge of the jury, prohibits the lawyer from asking questions merely to harass or embarrass the juror. Unlike Louisiana Paragraph (a), DR 7-108 also prevents communications with the juror’s family. Although not a general prohibition on a lawyer’s attempts to influence a judge or judicial officials, DR 7-110 limits and regulates the contact a lawyer may have with such officials. DR 8-101(A)(2) prevents a lawyer who is a public official from using his position to influence a tribunal. EC 7-34 prohibits a lawyer from giving a gift or loan to a judge or judicial employee except in limited circumstances.

LRPC 3.5(b) prevents a lawyer from having ex parte contacts with judges, jurors, prospective jurors or other officials, except as permitted by law. Similarly, DR 7-108(A) and (B) prohibit ex parte contact with jurors before and during the trial, and, while DR 7-110(A) and (B) do not absolutely bar ex parte contacts with judicial officials, they do regulate them. EC 7-35 warns against all communications with a judge pertaining to a matter before him when it may give the appearance of impropriety.

LRPC 3.5(c) prevents a lawyer from engaging in “conduct intended to disrupt a tribunal.” The Model Code addresses this issue in DR 7-106(C)(6), which prohibits a lawyer from engaging in conduct which is “undignified or discourteous” or which will “degrade” the tribunal. Additionally, DR 1-102(A)(5) prevents a lawyer from prejudicing the administration of justice.

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

Primary Louisiana References: LA Rule 3.5(a)
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 173, 175, Wolfram §§ 11.3, 11.4

This section has not yet been completed.

3.5:210      Improperly Influencing a Judge

This section has not yet been completed.

3.5:220      Improperly Influencing a Juror

This section has not yet been completed.

3.5:300   Improper Ex Parte Communication

Primary Louisiana References: LA Rule 3.5(b)
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL § 172, Wolfram § 11.3.3

This section has not yet been completed.

3.5:400   Intentional Disruption of a Tribunal

Primary Louisiana References: LA Rule 3.5(c)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary: ABA/BNA § 61:901, ALI-LGL § 165, Wolfram § 12.1.3

This section has not yet been completed.

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 3.6
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:

3.6:101      Model Rule Comparison

LRPC 3.6(a) is substantially the same as MR 3.6(a) except that the Model Rule specifies that the only lawyers who are prohibited from making extrajudicial statements are those who “[are] participating or [have] participated in the litigation or investigation of a matter.” MR 3.6(d) also prohibits these lawyers’ associates from making prohibited statements. LRPC 3.6(a), as written, applies to all lawyers with information about a case or investigation, regardless of their involvement or association.

LRPC 3.6(b) provides an illustrative list of information that must be included in a statement before its disclosure is precluded. The Model Rule has no counterpart, although Comment 5 to MR 3.6 lists the same category of subjects which ordinarily have a prejudicial effect on proceedings and are, therefore, prohibited.

LRPC 3.6(c) is also similar to MR 3.6(b). While MR 3.6(b) lists information that a lawyer may reveal, LRPC 3.6(c) specifies that such statements may be made “without elaboration.” The text of LRPC 3.6(c)(2) and MR 3.6(b)(2) are the same.

Like LRPC 3.6(c)(3), MR 3.6(b)(1) allows the lawyer to reveal “the identity of the persons involved” when permitted by law. Additionally, LRPC 3.6(c)(3) and MR 3.6(b)(3) both allow a lawyer to reveal that an investigation is “in progress.”

LRPC 3.6(c)(4), (5) and (6) are identical to MR 3.6(b)(4), (5) and (6). Both LRPC 3.6(c)(7) and MR 3.6(b)(7) address statements a lawyer may make in a criminal case. MR 3.6(b)(7) adds that these statements may be made “in addition to subparagraphs (1) through (6).” LRPC 3.6(c)(7) does not include such a provision. The remainder of the text in LRPC 3.6(c)(7) is identical to the text of MR 3.6(b)(7). The substance of MR 3.6(c) and (d) is not included in LRPC 3.6.

3.6:102      Model Code Comparison

The counterpart to LRPC 3.6 in the Model Code is DR 7-107, but the two Rules are very different. LRPC 3.6(a) prevents a lawyer from making extrajudicial statements if he “knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” DR 7-107 also prevents lawyers from making extrajudicial statements, but the Rule is organized according to the type of proceeding. DR 7-107(A), (B), (D) and (E) prevent a lawyer working on a criminal matter from making such statements, DR 7-107(G) prevents such statements in the context of a civil action, and DR 7-107(H) prevents such statements in the context of an administrative proceeding. The two Rules also differ in that the Model Code does not require the lawyer to know that a statement will have a “substantial likelihood” of prejudicing an adjudicative proceeding before the statement is restricted.

LRPC 3.6(b) provides an illustrative list of information a lawyer’s statement must relate to before Rule 3.6 prevents its utterance. Paragraph (b)(1) prevents disclosure of the “character, credibility, reputation or criminal record” of a party, suspect or witness and also prevents disclosure of a witness’ identity and their expected testimony. DR 7-107(B)(1) prevents disclosure of similar information about the accused in a criminal matter. DR 7-107(B)(1) does not prevent disclosure of the same information about witnesses. DR 7-107(G)(2) and (H)(2) prevent disclosure of information about a “party, witness or prospective witness” in civil and administrative proceedings. In all three of these Model Code provisions, neither the identity nor the expected testimony of a witness is prevented from being disclosed as provided in LRPC 3.6(b)(1).

LRPC 3.6(b)(2) prevents disclosure of guilty pleas, statements given by a defendant or suspect, or their refusal to make such a statement in a matter that could result in incarceration. In criminal proceedings, DR 7-107(B)(2) prevents disclosure of a guilty plea and (B)(3) prevents disclosure of the existence or contents of confessions or statements made by an accused or his refusal to make such a statement. The Louisiana Rule has broader application, applying to information about the defendant and suspects in all cases in which incarceration may be imposed.

LRPC 3.6(b)(3) prevents disclosure of the performance results or of any examinations, or a persons’ refusal to undergo such an examination, and prevents a lawyer from revealing “the identity or nature of physical evidence expected to be presented.” DR 7-107(B)(4) prevents such disclosure in a criminal context and (G)(3) prevents the same in a civil context. Neither of these Model Code provisions prevents disclosure of information relating to physical evidence, although DR 7-107(B)(6) prevents a lawyer from disclosing his or her opinion as to the evidence in a case. Conversely, DR 7-107(C)(7) allows the lawyer to describe physical evidence seized at the time of a suspect’s seizure. Only DR 7-107(H)(3), which regulates disclosure of information during the pendency of an administrative proceeding, prevents disclosure of information regarding both examinations and physical evidence.

LRPC 3.6(b)(4) prevents disclosure of the lawyer’s opinion regarding a defendant or a suspect’s guilt in cases where incarceration may be imposed. DR 7-107(B)(6) prevents the same. DR 7-107(B)(6) goes further, preventing a lawyer from making statements regarding the evidence or merits of a criminal case.

LRPC 3.6(b)(5) prevents a lawyer from disclosing information he or she knows will be inadmissible at trial and which could put the trial at risk of being prejudiced. While the Model Code has no counterpart to this provision, DR 7-107(D), (G)(5) and (H)(5) all prevent disclosure of matters which would interfere with a fair hearing. LRPC 3.6(b)(6) prevents a lawyer from disclosing the fact that a defendant has been charged with a crime unless a statement is included therein which explains that the defendant is innocent until proven guilty. The Model Code has no counterpart. Instead, DR 7-107(C)(1) allows a lawyer to disclose “the name, age, residence, occupation, and family status of the accused” and (C)(8) allows the lawyer to disclose “the nature, substance or text of the charge.”

LRPC 3.6(c) allows the lawyer to reveal certain general information despite the restrictions set forth in Paragraphs (a) and (b). LRPC 3.6(c)(1) allows the lawyer to disclose the “general nature of the claim or defense.” In a criminal case, the Model Code, in DR 7-107(C)(8) and (11), allows disclosure of the “nature, substance, or text of the charge,” as well as the fact that the “accused denies the charges made against him.” The Model Code does not provide for disclosure of such information in civil or administrative proceedings.

LRPC 3.6(c)(2) allows disclosure of information contained in the public record. The Model Code allows the same disclosure in both the criminal and civil contexts in DR 7-107(A)(1) and (G). LRPC 3.6(c)(3) allows a lawyer to disclose that an investigation is pending and the identity of the persons involved when allowed by law. DR 7-107(A)(2) and (3) allows the same disclosure, but only in the criminal context.

LRPC 3.6(c)(4) allows the lawyer to disclose “the scheduling or result of any step taken in the litigation.” DR 7-107(C)(10) allows disclosure about progress in judicial proceedings in the criminal context. The Model Code has no similar provision for civil cases. LRPC 3.6(c)(5) allows the lawyer to request assistance in gathering evidence. DR 7-107(A)(4) is the Model Code counterpart for the criminal context. The Model Code has no counterpart in the civil context. LRPC 3.6(c)(6) allows a lawyer to warn of danger when there is reason to believe that there is a likelihood of substantial harm to an individual or the public. DR 7-107(A)(5) is broader, allowing disclosure to warn the public of any danger. There need not be a reasonable belief that harm may occur. Once again, the Model Code addresses this issue only in the context of a criminal matter. LRPC 3.6(c)(7) allows disclosure of certain information in criminal cases. The same disclosures are allowed by the Model Code in DR 7-107(C)(1), (2), (5) and (6). The remainder of DR 7-107(C) also allows disclosure of information not addressed by LRPC 3.6.

3.6:200   Improper Extrajudicial Statements

Primary Louisiana References: LA Rule 3.6(a)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary: ABA/BNA § 61:1001, ALI-LGL § 169, Wolfram § 12.2

This section has not yet been completed.

3.6:300   Permissible Statements

Primary Louisiana References: LA Rule 3.6(b)
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary: ABA/BNA § 69:1001, ALI-LGL § 169, Wolfram § 12.2

This section has not yet been completed.

3.6:400   Responding to Adverse Publicity

Primary Louisiana References: LA Rule 3.6(c)
Background References: ABA Model Rule 3.6(c), Other Jurisdictions
Commentary: ABA/BNA § 61:100l, ALI-LGL § 169, Wolfram § 12.2

This section has not yet been completed.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 3.7
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:

3.7:101      Model Rule Comparison

LRPC 3.7 includes the text of MR 3.7 and adds Paragraph (c) which allows a lawyer to continue representation in a matter where the lawyer knows that he, or a lawyer in his firm, may be called as a witness until it is “apparent that his testimony is or may be prejudicial to his client.” Although the substance of LRPC 3.7(c) is not included in the text of MR 3.7, Comment 5 to MR 3.7 notes that when the testimony of the client and lawyer conflict, representation is improper.

3.7:102      Model Code Comparison

LRPC 3.7(a) prevents a lawyer from representing a client in a trial in which he is likely to be called as a necessary witness except in a limited number of circumstances. DR 5-101(B) is broader than Paragraph (a), preventing a lawyer from accepting employment in litigation where the lawyer or a lawyer in his firm “ought to be called as a witness.” DR 5-102(A) also precludes a lawyer from continuing representation of a client in litigation in which he or a lawyer in his firm may be called as a witness on behalf of his client once the lawyer has already accepted the employment. DR 5-101(B) and DR 5-102(A) do not require that the lawyer be a necessary witness before he is precluded from representation. The three instances in which a Louisiana lawyer may represent a client in litigation in which he could be called as a necessary witness in Paragraph (a) are reflected in DR 5-101(B)(1), (3) and (4). One difference is that LRPC 3.7(a)(3) allows a lawyer to represent a client when he will likely be called as a witness if “disqualification of the lawyer would work substantial hardship on the client.” DR 5-101(B)(4) adds that the substantial hardship on the client must result because of the “distinctive value of the lawyer or his firm as counsel in the particular case.”

Unlike the broad disqualification in DR 5-101(B) and DR 5-102(A), LRPC 3.7(b) allows a lawyer to represent a client in litigation in which another lawyer in his firm may be called as a witness unless such representation is precluded by LRPC 1.7 or 1.9. LRPC 3.6(c) contains the exact same text as that found in DR 5-102(A).

3.7:200   Prohibition of Advocate as Witness

Primary Louisiana References: LA Rule 3.7(a)
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5

This section has not yet been completed.

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

Primary Louisiana References: LA Rule 3.7(b)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5, 7.6

This section has not yet been completed.

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 3.8
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:

3.8:101      Model Rule Comparison

The text of MR 3.8(a) through (e) was adopted in LRPC 3.8(a) through (e). LRPC 3.8(f) and MR 3.8(f) are also similar, preventing a lawyer from being subpoenaed in a criminal proceeding except under certain circumstances. LRPC 3.8(f) adds that this rule does not prevent a lawyer from being subpoenaed in “habitual offender proceedings for the purpose of identification only, or in post conviction proceedings on the issue of competency of counsel raised by his/her former client.” LRPC 3.8(f)(1)(iii) and (2) also provide that a lawyer may not be subpoenaed if the purpose is to “harass the attorney or his or her client” and requires the prosecutor to obtain “judicial approval after an opportunity for an adversarial proceeding” before issuing such a subpoena. The Model Rule has no counterpart. The substance of MR 3.8(g), which prohibits extrajudicial statements which “have a substantial likelihood of heightening public condemnation of the accused,” has no counterpart in LRPC 3.8.

3.8:102      Model Code Comparison

Both LRPC 3.8(a) and DR 7-103(A) prevent a lawyer serving as prosecutor in a criminal case from prosecuting a charge he knows is not supported by probable cause. DR 7-103(A) also applies to “other governmental lawyer[s]” and prevents prosecution in cases where the lawyer knows or it is “obvious” that there is no probable cause. LRPC 3.8(b) requires a lawyer acting as prosecutor to give an accused notice of his right to counsel and an opportunity to retain counsel. The Model Code has no counterpart.

LRPC 3.8(c), which relates to waiver of pretrial rights, also has no counterpart in the Model Code. In both of these situations, Model Code Provision EC 7-18 guides the lawyer in the same direction as LRPC 3.8(b) and (c) by warning that a lawyer should not advise a person who is unrepresented by counsel, unless it is to advise that person to obtain a lawyer. LRPC 3.8(d) requires a prosecutor to reveal evidence to the defense which “tends to negate the guilt of the accused or mitigates the offense.” DR 7-103(B) requires the same. Paragraph (d) also requires a prosecutor to disclose “unprivileged mitigating information” during the sentencing process. DR 7-103(B) requires the prosecutor to disclose evidence which tends to “reduce the punishment” without regard to privilege. Unlike the Model Code provisions, Paragraph (d) allows the prosecutor to be relieved of this duty “by a protective order of the tribunal.” LRPC 3.8(e) and (f) have no counterpart in the Model Code.

3.8:200   The Decision to Charge

Primary Louisiana References: LA Rule 3.8(a)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

This section has not yet been completed.

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

Primary Louisiana References: LA Rule 3.8(b)
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

This section has not yet been completed.

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary Louisiana References: LA Rule 3.8(c)
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

This section has not yet been completed.

3.8:500   Disclosing Evidence Favorable to the Accused

Primary Louisiana References: LA Rule 3.8(d)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10.5

This section has not yet been completed.

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary Louisiana References: LA Rule 3.8(e)
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

This section has not yet been completed.

3.8:700   Issuing a Subpoena to a Lawyer

Primary Louisiana References: LA Rule 3.8(f)
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary: ABA/BNA § 55:1301, ALI-LGL § 156

This section has not yet been completed.

3.8:800   Making Extrajudicial Statements

Primary Louisiana References: LA Rule 3.8(g)
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 169, Wolfram § 12.2.2

This section has not yet been completed.

3.8:900   Peremptory Strikes of Jurors

Primary Louisiana References: LA Rule 3.8
Background References: Other Jurisdictions
Commentary:

This section has not yet been completed.

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:

3.9:101      Model Rule Comparison

The text of LRPC 3.9 is identical to that in its counterpart MR 3.9.

3.9:102      Model Code Comparison

LRPC 3.9 requires a lawyer appearing in a non-adjudicative hearing before a legislative or administrative tribunal to disclose that he is appearing in a representative capacity. Although there is no Model Code counterpart, DR 7-106(B)(2) addresses presentation of matters to regular tribunals and provides that a lawyer “shall disclose . . . unless privileged or irrelevant, the identities of the clients he represents and of the persons who employed him.” Additionally, EC 7-15 provides that “[a] lawyer appearing before an administrative agency, regardless of the nature of the proceeding it is conducting, has the continuing duty to advance the cause of his client within the bounds of the law.” It provides further that, “[in] all appearances before administrative agencies, a lawyer should identify himself, his client if identity of his client is not privileged, and the representative nature of his appearance.” LRPC 3.9 specifically requires that attorneys appearing in such nonadjudicative proceedings conform with LRPC 3.3(a) through (c), 3.4(a) through (c) and 3.5. These rules are compared with their Model Code counterparts in their respective sections, found above.

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary Louisiana References: LA Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 164, Wolfram § 13.8

This section has not yet been completed.

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