Litigation & Advocacy · 10-16% of the exam

Night-before checklist

Chapter 15 · 6 items

Six points, and the press rules account for the first three.

Rule 3.6 bars extrajudicial statements with a substantial likelihood of materially prejudicing the proceeding; Rule 3.6(d) carries that to every lawyer in the firm or agency; the (b) safe harbors are not an exhaustive list.
The right of reply covers recent adverse publicity not initiated by the lawyer or the lawyer's client, reaching only what is necessary to mitigate it; disparaging a witness's character is not ordinarily within it.
Rule 3.8(f) bars extrajudicial comments with a substantial likelihood of heightening public condemnation of the accused, except statements necessary to inform the public of the nature and extent of the prosecutor's action that serve a legitimate law-enforcement purpose, and requires reasonable care to keep investigators and staff from saying what the prosecutor could not; a statement may pass Rule 3.6 and still violate Rule 3.8(f).
Rule 3.7 disqualifies only the testifying lawyer, not the firm; a colleague may serve as trial advocate subject to any independent Rule 1.7 or Rule 1.9 conflict.
Rule 3.8(d)'s Brady disclosure duty covers all evidence or information known to the prosecutor that tends to negate guilt or mitigate the offense, whatever the prosecutor's own view of its weight or admissibility.
Rule 3.8's post-conviction obligations fall on the prosecutor who knows, regardless of personal involvement in the original case; (g)(2) reaches only convictions obtained in that prosecutor's own jurisdiction, and (h) only a defendant there.

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