Obligations to 3rd Parties

Truthfulness in Statements to Others.

 

A lawyer shall not make a false statement of law or fact to third parties (Army Rule 4.1(a)).

courtmartialdefenselawyers10.53.30 2Knowledge of falsity generally required.Misrepresentations can occur if a lawyer affirms a false statement of another person.A lawyer may not fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act, unless disclosure is prohibited by Rule 1.6 (Army Rule 4.1(b)).

A lawyer also has an obligation to disclose prior misstatements.

A lawyer may not fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act, unless disclosure is prohibited by Rule 1.6 (Army Rule 4.1(b)).

 

A lawyer shall not make a false statement of law or fact to third parties (Army Rule 4.1(a)).

 

Knowledge of falsity generally required.

 

Misrepresentations can occur if a lawyer affirms a false statement of another person.

Truthfulness in Statements to Others.

Obligations to 3rd Parties

Respect for the Rights of Third Parties (Army Rule 4.4).

A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third party or use methods of obtaining evidence that violate the rights of third parties (Army Rule 4.4).

Other obligations to third parties:

A lawyer has a duty of candor when dealing with third parties. People v. Berge, 620 P.2d 23 (Colo. 1980).

 

A lawyer is forbidden from engaging in illegal, dishonest, and fraudulent conduct. Office of Disciplinary Counsel v Kissel, 442 A.2d 217 (Pa. 1982).

 

Lawyers must not make derogatory remarks about opposing counsel or opposing parties. Professional Responsibility, The Army Lawyer (Sept. 1978) (“lowly, dishonest, welsher”). See also State v Turner, 538 P.2d 966 (Kan. 1975).

Communications with Opposing Parties.

 

A lawyer shall not discuss a case with another party who is represented by an

attorney (Army Rule 4.2). See also ABA Code DR 7-104.

A lawyer may not accomplish communication indirectly through an agent or encourage clients to contact opposing parties.

Trial counsel, following on the heels of military defense counsel, barged into a meeting between civilian defense counsel and accused. Trial counsel proceeded to tell the accused that his civilian lawyer had not interviewed witnesses and was ineffective. This was inappropriate contact with the accused. United States v. Meek, 44 M.J. 1 (C.A.A.F. 1996).

 

Communication with a party concerning matters outside the representation is permissible.

 

A lawyer may communicate with the commander of an opposing party even if the party is represented by counsel.

 

A lawyer is not precluded from communicating with an unrepresented party (Army Rule 4.3).

Lawyers may not state or imply that they are disinterested.

 

Lawyers should refrain from giving advice to unrepresented persons

(Comment to Army Rule 4.3). See also ABA Code DR 7-104(A)(2).

Threatening Criminal Prosecution.

courtmartialdefenselawyers10.53.17 2Under ABA Code DR 7-105, lawyers could not present, participate in presenting, or threaten to present criminal charges “solely to gain an advantage in a civil matter.” See Iowa State Bar v. Michelson, 345 N.W.2d 112 (Iowa 1984); TJAG Opinions, The Army Lawyer, March 1993 and May 1977. See also United States v. Edmond, 63 M.J. 343 (C.A.A.F. 2006) where a trial counsel threatened a civilian witness (former Soldier) with prosecution by the SAUSA if he testified and then had the SAUSA reiterate the threat of prosecution.

There is no parallel provision in the Army Rules (or ABA Model Rules). Threatening or filing criminal charges may, however, violate more narrow provisions of Rules 3.1, 3.3, 3.4, 3.5, 3.8, 4.4, 8.4(b), or 8.4(e).

Practical application.

Attorneys should exercise caution when writing to collect support payments or debts on behalf of clients. See Iowa State Bar v. Michelson, 345 N.W.2d 112 (Iowa 1984); OTJAG Ethics Opinions, The Army Lawyer, March 1993, September 1978, and May 1977.

 

Complaints to the opposing party’s commander are permissible.

Lawyers should avoid making threats of initiating criminal charges. A lawyer may not circumvent this rule by encouraging clients to make threats. In re Charles, 618 P.2d 1281 (1980).

 

Neutral statements of fact concerning criminal penalties are permissible. See TJAG Professional Responsibility Opinion 89-01. (Found on JAGCNET under Administrative and Civil Law, then click on “Ethics: Attorney Professional Responsibility,” click “By Category.” One of the categories is “Ethics Opinions: TJAG’s PRC.”)