MPRE area 6 of 12

MPRE Litigation and Other Forms of Advocacy

This area covers a lawyer's duties as an advocate to the tribunal, opposing counsel, and third parties during litigation and nonadjudicative proceedings, plus special duties tied to trial publicity, witness-advocate conflicts, and prosecutorial ethics. The MPRE tests this heavily with fact patterns requiring you to distinguish mandatory disclosure duties from confidentiality, spot when zealous advocacy crosses into obstruction or dishonesty, and identify when candor to the tribunal trumps client loyalty.

What the MPRE tests

Meritorious Claims and Expediting Litigation

A lawyer may not bring or defend a proceeding, or assert an issue, unless there is a non-frivolous basis in law and fact for doing so, though a good-faith argument for extending, modifying, or reversing existing law counts as non-frivolous. A lawyer must also make reasonable efforts to expedite litigation consistent with the client's legitimate interests, avoiding delay merely to burden or harass the opposing party.

Model Rule 3.1, Model Rule 3.2

Candor Toward the Tribunal

A lawyer must not knowingly make a false statement of fact or law to a tribunal, must correct a previously made false statement, and must disclose legal authority in the controlling jurisdiction, known to the lawyer, that is directly adverse to the client's position and that opposing counsel has not disclosed. If a lawyer knows a client or witness intends to offer or has offered false material evidence, the lawyer must take remedial measures, including disclosure to the tribunal if necessary, even if this requires disclosing client confidences; this duty applies even in criminal cases and continues through the conclusion of the proceeding.

Model Rule 3.3

Fairness to Opposing Party and Counsel

A lawyer may not unlawfully obstruct access to evidence, destroy or conceal material with potential evidentiary value, falsify evidence, or assist a witness in testifying falsely. A lawyer also may not pay a witness contingent on the content of testimony or the outcome of the case (though reasonable expenses and reasonable compensation for lost time may be paid to fact witnesses, and reasonable fees may be paid to expert witnesses), must make reasonably diligent efforts to comply with legally proper discovery requests, and must not, at trial, allude to matters not reasonably believed relevant or supported by admissible evidence, nor state a personal opinion about the justness of a cause, a witness's credibility, or a party's culpability or guilt.

Model Rule 3.4

Impartiality/Decorum of Tribunal and Trial Publicity

A lawyer may not seek to improperly influence a judge, juror, or other official by illegal means, communicate ex parte with a judge or juror during proceedings absent authorization, or engage in conduct intended to disrupt a tribunal. Regarding publicity, a lawyer participating in a matter may not make an extrajudicial statement that will be publicly disseminated if the lawyer knows or reasonably should know it will have a substantial likelihood of materially prejudicing the proceeding, though the lawyer may state the general nature of claims/defenses and certain limited categories of information, and may make a statement reasonably necessary to protect the client from undue prejudicial publicity initiated by others.

Model Rule 3.5, Model Rule 3.6

Lawyer as Witness

A lawyer generally may not act as advocate at a trial in which the lawyer is likely to be a necessary witness. This rule is about trial advocacy specifically (not pretrial work or non-trial proceedings) and exists to avoid juror confusion and unfairness from a lawyer arguing his own credibility.

Model Rule 3.7

Special Responsibilities of a Prosecutor

A prosecutor has heightened duties beyond ordinary advocacy: to prosecute only charges supported by probable cause, ensure the accused has been advised of the right to counsel, avoid seeking waivers of pretrial rights from unrepresented accused persons, timely disclose exculpatory and mitigating evidence to the defense, and refrain from subpoenaing lawyers to testify about clients absent special justification. A prosecutor must also refrain from making extrajudicial statements that heighten public condemnation of the accused and must take reasonable remedial steps, including disclosure and notification, upon learning of new, credible evidence of a convicted defendant's innocence.

Model Rule 3.8

Advocate in Nonadjudicative Proceedings

A lawyer representing a client before a legislative or administrative body in a nonadjudicative, rulemaking or policymaking capacity must disclose that the appearance is made in a representative capacity, and must comply with the core advocacy fairness rules (candor and fairness provisions of 3.3, 3.4, and 3.5) as if before a tribunal.

Model Rule 3.9

Try an MPRE-style question

A defense lawyer in a civil case learns, only after her client testified truthfully at a deposition, that opposing counsel intends to call a witness whose testimony will likely be devastating but truthful. To gain a tactical advantage, the defense lawyer files numerous discovery motions and requests every possible extension, not because they are needed but solely to delay the trial date past the client's upcoming retirement to make the witness less available. Is the lawyer subject to discipline?

(A) No, because filing discovery motions and seeking extensions are always proper litigation tactics.
(B) No, because the lawyer is protecting the client's legitimate interest in delay.
(C) Yes, because a lawyer must make reasonable efforts to expedite litigation consistent with the client's interests.
(D) Yes, because a lawyer may never request an extension of a trial date.

Show answer

C. Rule 3.2 requires reasonable efforts to expedite litigation consistent with the client's interests. Delay pursued solely to frustrate the opponent, here by making a witness less available, is not a legitimate client interest. The choice calling the delay a legitimate client interest is wrong for that reason. The choice saying extensions may never be requested overstates the rule, because good-faith extensions are proper. Model Rule 3.2