3.7 [ABROGATED] Conduct During Litigation

Text of Rule effective until August 1, 2009.

(a) Improper Legal Action. A lawyer shall not file a suit, assert a position, delay a trial, or take other action on behalf of a client when the lawyer knows, or should know, that such action would merely serve to harass or maliciously injure another.

(b) Improper Concealment, Statement or Evidence. A lawyer shall not knowingly make a false statement, conceal information legally required to be revealed, or participate in the creation or preservation of false evidence.

(c) Interest in Litigation. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) Assert a lien granted by law against the proceeds of such action or litigation to secure the lawyer's fee or expenses. This paragraph does not authorize an attorney to assert a lien on a client's file in order to secure payment of a fee. The assertion of such a lien (if any exists) is improper; and

(2) Contract with a client for a reasonable contingent fee as provided in Rule 8.

(d) Financial Assistance. While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and expenses of obtaining and presenting evidence.

(e) Adversary Conduct.

(1) In appearing in a professional capacity before a tribunal, a lawyer shall:

(i) Employ, for the purpose of maintaining the causes confided to the lawyer, such means only as are consistent with truth, and shall not seek to mislead the judge, jury, or tribunal by any artifice or false statement of fact or law;

(ii) Disclose, unless privileged or irrelevant, the identities of all the clients the lawyer represents.

(2) In appearing in a professional capacity before a tribunal, a lawyer shall not:

(i) Intentionally misquote to a judge, jury, or tribunal the language of a book, statute, or decision or, with knowledge of its invalidity and without disclosing such knowledge, cite as authority, a decision that has been overruled or a statute that has been repealed or declared unconstitutional;

(ii) State or allude to any matter that the lawyer has no reasonable basis to believe is relevant to the case or will not be supported by admissible evidence;

(iii) Ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person;

(iv) Assert personal knowledge of the facts at issue, except when testifying as a witness;

(v) Assert a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but a lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated therein; or

(vi) Engage in undignified or discourteous conduct that is degrading to a tribunal. (back to top)

(f) Communication With Jurors.

(1) At no time shall a lawyer connected with the trial of a case communicate extrajudicially, directly or indirectly, with a juror, with anyone the lawyer knows to be a member of the pool from which the jury will be selected, or with any member of such person's family.

(2) After discharge of a juror from further jury service, a lawyer may ask or answer questions and make comments to the former juror provided the questions or comments are not intended to harass or embarrass the juror or influence the juror's action in future jury service.

(3) A lawyer shall reveal promptly to the court knowledge of improper conduct by a juror or member of the jury pool, or by another toward a juror or member of the jury pool, or a member of the juror's or jury-pool member's family.

(g) Contact With Witnesses. A lawyer shall not:

(1) Suppress any evidence that the lawyer or a client has a legal obligation to reveal or produce;

(2) Advise, or directly or indirectly cause, a person to hide or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein; or

(3) Directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the testimony of the witness or the outcome of the case; but unless prohibited by law, a lawyer may advance, guarantee, or acquiesce in payment of:

(i) Expenses reasonably incurred by a witness in attending or testifying;

(ii) Reasonable compensation to a witness for his loss of time in attending or testifying; and

(iii) A reasonable fee for the professional services of an expert witness.

(h) Contact With Officials.

(1) A lawyer shall not directly or indirectly give or lend anything of value to a judge, official, or employee of a tribunal unless the personal or family relationship between the lawyer and the judge, official, or employee is such that gifts are customarily given and exchanged. This paragraph does not preclude contributions to election campaigns of public officers.

(2) In the absence of opposing counsel, a lawyer shall not directly or indirectly communicate with or argue before a judge or tribunal upon the merits of a contested matter pending before such judge or tribunal, except in open court; nor shall the lawyer, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or tribunal concerning the merits of a contested matter pending before such judge or tribunal. This paragraph does not preclude communications permitted by rule of court. For purposes of this paragraph the term "opposing counsel" includes a party who has no counsel.

(i) Duty of Public Prosecutor.

(1) A lawyer shall not institute or cause to be instituted criminal charges when the lawyer knows, or it is obvious, that the charges are not supported by probable cause.

(2) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to a defendant without counsel, of the existence of evidence that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

(3) A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person whom the lawyer represents or has represented as a client.

(4) A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person relative to a matter in which the lawyer represents or has represented the complaining witness.

(j) Extra-Judicial Publicity. A lawyer involved in the prosecution or defense of a criminal matter or in representing a party to a civil cause shall not make or participate in making any extra-judicial statement which poses a substantial danger of interference with the administration of justice.