BarMax MPRE Study Guide

VII. Communications with Persons Other than Clients (2% to 8%) A. Truthfulness in Statements to Others an attorney is prohibited from making false statements of material fact or law to third parties. B. Communications with Adversaries 1. Represented Persons in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. 2. Unrepresented Persons ! Shall Not State or Imply that the Lawyer is Disinterested in dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. Unrepresented Person Misunderstands Lawyers Role when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. No Legal Advice the lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

C. Communications with Witnesses a lawyer is allowed to communicate with all witness (even witness for the opposing party). 1. Prohibited from Encouraging Witnesses to Leave the Jurisdiction to Avoid Testifying 2. Prohibited from Harassing Witnesses or Prospective Witnesses 3. Payment to Witnesses ! ! ! Non-Expert Witness an attorney may not pay a witness for testifying except for reimbursement of expenses incident to testifying (e.g. travel expenses). Expert Witness an attorney may pay an expert witness a reasonable fee in addition to reimbursement expenses incident to testifying. Contingent Fee Basis Prohibited no witnesses, non-expert or expert, may be paid on a contingent basis.

D. Communications with Jurors 1. Pre-Trial ! Jury Panel before trial, an attorney is prohibited from communicating with members of the panel from which the jury will be selected.

2. During Trial an attorney is prohibited from communicating with members of the jury except during official court proceedings. 3. Post Trial an attorney may communicate with a juror or prospective juror after discharge of the jury unless: ! "!

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BarMax MPRE Study Guide

! ! Prohibited by Law the communication is prohibited by law or court order; Desire Not to Communicate Made Known to Lawyer the juror has made known to the lawyer a desire not to communicate; OR ! Misrepresentation, Coercion, Duress or Harassment the communication involves misrepresentation, coercion, duress or harassment. E. Communications with the Court 1. Ex Parte Communications ex parte communications are prohibited unless: ! Emergency notice to the other party, however, must be given as soon as possible. OR ! Letters to Judges an attorney may send a judge a letter ex parte but the opposing party must also receive a copy of the correspondence. 2. No Gifts to Court Personnel ! Exception: Ordinary Hospitality

F. Communications with the Press a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. ! Disseminated by Means of Public Communication AND ! Substantial Likelihood of Materially Prejudicing Adjudicative Proceeding

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