Different Roles of the Lawyer · 4-10% of the exam

Night-before checklist

Chapter 19 · 9 items

Eight points, and the last one comes down to two words the exam trades on.

Prosecutors may not go forward on a charge they actually know lacks probable cause; the test is actual knowledge, not what a diligent prosecutor would have found out, and a later conviction doesn't cure it.
Rule 3.8(b)–(c): make reasonable efforts to see that the accused has been advised of the right to counsel and of how to obtain it and given a reasonable opportunity to obtain it; seek no important pretrial-right waiver from an unrepresented accused.
All evidence or information known to the prosecutor that tends to negate guilt or mitigate the offense: timely disclosure to the defense; at sentencing, unprivileged mitigating information goes to defense and tribunal, except where a protective order of the tribunal relieves the prosecutor.
New, credible, material evidence raising a reasonable likelihood of wrongful conviction requires prompt court disclosure and, for in-jurisdiction convictions, defendant disclosure plus investigation; clear-and-convincing evidence of innocence requires affirmative steps to remedy the conviction.
Rule 3.8(e): no subpoena to a lawyer in a grand jury or other criminal proceeding about a client unless the prosecutor reasonably believes all three — no applicable privilege, evidence essential to the successful completion of an ongoing investigation or prosecution, and no feasible alternative.
Rule 3.8(f): no 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, plus reasonable care to keep investigators, law-enforcement staff, and other assisting persons from saying what the prosecutor could not.
Before a legislature or administrative agency, the appearance must be disclosed as representative in character; failure to name the client is not the violation — failure to disclose the representative status is.
When the lawyer knows a constituent's conduct in a matter related to the representation violates a duty to the entity or a law imputable to it and is likely to cause substantial injury, refer up (to the highest authority that can act if the circumstances warrant) unless the lawyer reasonably believes it unnecessary in the entity's best interest.
ABA external reporting after the board fails is permissive ("may"); SOX escalation to the board after CLO failure is mandatory ("must") — never swap those words on the exam.

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