Hi there, according with the ABA rules and the ABA standard. Could you help me with the following questions?

Emphasizing this ABA Rule

Rule 4.1: Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

COMMENT

Misrepresentation

[1] A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4.

Statements of Fact

[2] This Rule refers to statements of fact. Whether a particular statement should be considered as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.

Crime or Fraud by Client

[3] Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client's crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client's crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client's crime or fraud. If the lawyer can avoid assisting a client's crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.

CRIMINAL JUSTICE STANDARDS

Prosecution Function

https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/

Standard 3-5.4 Identification and Disclosure of Information and Evidence

(a) After charges are filed if not before, the prosecutor should diligently seek to identify all information in the possession of the prosecution or its agents that tends to deny the guilt of the accused, mitigate the offense charged, impeach the government's witnesses or evidence , or reduces the likely punishment of the accused if convicted.

(b) The prosecutor should diligently advise other governmental agencies involved in the case of their continuing duty to identify, preserve, and disclose to the prosecutor information described in (a) above.

(c) Before trial of a criminal case, a prosecutor should make timely disclosure to the defense of information described in (a) above that is known to the prosecutor, regardless of whether the prosecutor believes it is likely to change the result of the proceeding , unless relieved of this responsibility by a court's protective order. (Regarding discovery prior to a guilty plea, see Standard 3-5.6(f) below.) A prosecutor should not intentionally attempt to obscure information disclosed pursuant to this standard by including it without identification within a larger volume of materials.

(d) The obligations to identify and disclose such information continue throughout the prosecution of a criminal case.

(e) A prosecutor should timely respond to legally proper discovery requests, and make a diligent effort to comply with legally proper disclosure obligations, unless otherwise authorized by a court. When the defense makes requests for specific information, the prosecutor should provide specific responses rather than merely a general acknowledgment of discovery obligations. Requests and responses should be tailored to the case and "boilerplate" requests and responses should be disfavored.

(f) The prosecutor should make prompt efforts to identify and disclose to the defense any physical evidence that has been gathered in the investigation, and provide the defense a reasonable opportunity to examine it.

(g) A prosecutor should not avoid pursuit of information or evidence because the prosecutor believes it will damage the prosecution's case or aid the accused.

(h) A prosecutor should determine whether additional statutes, rules or caselaw may govern or restrict the disclosure of information, and comply with these authorities absent court order.

Problem I

Ross Davids is a lawyer with a statewide reputation for artful negotiating. In a recent seminar he gave on negotiation, Ross described a few of his methods. I want to protect my client. One of the simplest ways is by answering a question with another question. When opposing counsel in a small busi- ness purchase asked how solvent my client was, I just replied, 'Do you really think he'd be doing this deal if he wasn't?' Later, when my client's finances came up again, I pretended to get angry, and objected to all those 'per- sonal' questions. In actuality, my client's balance sheet was not as clean as we'd like it, but it was a pretty small deal, and the other lawyer never did check it out. bxem I never want to lie, but stretching the truth is not lying. Let me tell you what I mean. We just did a mediation in a construction defect case. I told them that we had architectural, framing and soils experts all lined up. Actually, we'd put the architect to work already, and I'd talked to the soils expert, but I didn't want to be wasting thousands on him or a framer if the mediation was successful. So I just took what the architect and I thought they'd say,

and told the mediator 'that's what we're gonna prove at trial.' I figure it's no harm, no foul, since we almost definitely would get that testimony anyway. In that same case, we told them we had a corroborating witness who heard our client twice ask the general contractor about earth movement and get told that it was 'no problem.' Actually, we do have the name of this person, but we've had some problems tracking her down. We believe she's a Mexi- can citizen who's back in Mexico. But sometimes, your strongest case is the one you can present at a mediation or settlement conference, since that's the time you can tell a little white lie,' or 'play poker' and run a bluff. After all, that contractor knows exactly what he said to our client. my client's I always want to use my client as a shield to deflect committing to a deal when I may be able to get a better one. Sometimes, when I have authority to settle, I'll pretend to conspire with the other lawyer. I'll say something like, "Tell you what, if you and I can agree that X dollars is fair, I'll sell it to my client if you do the same with yours.' That gets me off the hook of being the one to blink. At other times, I'll say I really can't move forward without getting my partner-a real 'tough guy'-to agree, even if I'm running the show.

Or say an insurance company client evaluates a case at $50,000. That doesn't mean I can't say to a weak opponent that the company won't pay more than twenty. In negotiating a deal, it's the same idea. Say my client gives me authority to purchase at $500,000. Of course, I'll try to close the deal for a lot less. If opposing counsel is foolish enough to come down to five hundred right away, I'll say something like, 'I'll tell my client, but frankly, no way will she go for anything that high.' I know my client would pay the five hundred, but why shouldn't I find out how good a deal I can get? After all, if they're already down to 500, isn't it true that no longer pay that much in order to get the best deal she can? I mean, that's why she hired me, right? my client will

Assignment :

Evaluate each of Ross Davids' tactics.

II

Take two of the examples in the negotiation ethics roundtable article in Sec- tion 3, below, and evaluate how you would behave, and why.

IIl

Assume a deputy district attorney is going to trial with an eyewitness who is a drug addict and has several "failures to appear" on his record, that is, failing to make a scheduled court appearance. Must the DA share this information with the defense during a plea negotiation session in the DA's office? What if the plea-bargaining takes place in chambers in the presence of the judge? What if the deputy DA knows that the witness "temporarily" cannot be found?