Chapter 8
The Duty of Diligent Representation
The videos that accompany this section still reference “zealous representation” instead of
“diligent.”
Power Point Presentations: There is one presentation of about 25 slides. Please remember to
review it before showing it in class so that you can insert your own state law where indicated on
the slides.
Chapter Hypothetical: Here’s a hi-tech hypo! It comes from the 2006 case In re Napster, Inc.
You’ll find the citation in the first Critical Thinking exercise.
Lesson Objective: What does diligent representation mean? (pg. 232)
Lecture Suggestion: For those of you who remember the ABA Model Codes, zealous was the
word of the day. Now we use the word “diligent” instead.
Lesson Objective: Honest communication with the client (pg. 232)
Refer the student to Chapter 7’s discussion of negligent disregard for the client. The 4 rules
about bad news on page 233 will lead to classroom discussion. You could do a Four Corners
exercise with them.
Lesson Objective: Where is that “boundary of the law?” (pg. 233)
Lecture Suggestion: This would be a good place for another “Just Deal with It” class activity.
Suppressing Evidence:
Suppressing evidence is the easiest of these misdeeds to carry out. I’m sure it happens
frequently. In Class Action, the Big Evil law firm suppresses evidence that shows that the auto
manufacturer knew about the defect in the car.
Fabricating Evidence:
Fabrication of evidence is a crime all by itself. Waldrop v. State, 219 S.W.3d 531 (2007) where a
In The Verdict, evidence is fabricated by the client (Hospital and Doctors) showing that the
patient had eaten 9 hours in advance of the surgery instead of 1 hour.
Inducing a witness to lie:
that he bought the beer on Saturday instead of Sunday so as to avoid conviction of illegally
buying alcohol on Sunday. What’s the big deal?
Here’s your federal statute: 18 U.S.C.A. § 1622 — Whoever procures another to commit any
perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not
more than five years, or both.
Allowing a witness to lie:
Making false affidavits:
The Bishop case is in the Extra Resources folder on the website paralegalethics.net It is less than
a page and worth having your students read in class.
Making false documents:
Creating a state of mind: Show the movie Anatomy of a Murder just for the first part.
Check Your Understanding: (pg. 237) 1. c 2. d 3. d
Lesson Objective: What is the penalty for creating or preserving false evidence? (pg. 238)
Lecture Suggestion: Arizona District Attorney Kenneth Peasley, twice “prosecutor of the year”
Lesson Objective: What is spoliation of evidence? (pg. 239)
Lecture Suggestion: After reading this section, have your students take a stab at the
hypothetical at the beginning of the chapter. You might want to tell them that there is a spectrum
Video Alert: Video Segment #22 shows our paralegal Alicia with the smoking gun document.
Will she decide to destroy it? Was it a big mistake to bring Michael in on the secret?
Lesson Objective: How are we accidentally deceitful? (pg. 239)
Activity Suggestion: It may be difficult to get students to admit their deceits – even the little
ones – but here is a game you can play in class that illustrates harmless deceitfulness. Two
Truths and a Lie. You can use this game as an icebreaker at the beginning of the term and then
come back to discuss it here in Chapter 8. Here’s the game: Each person writes down 3 things
Lesson Objective: What is “material?”
Lecture Suggestion: I know of someone to whom this happened. She was a young law student,
working her way through law school by working as a legal secretary. Her boss asked her to do
Video Alert: Video Segment #21 shows Michael being asked to lie by his supervising lawyer.
Instead, he offers to buy pretexted information. Both are bad.
Lesson Objective: How are we deceitful in discovery?
Lecture Suggestion: Actually, I think that postage meters are so hi-tech now that they probably
cannot be tampered with. Tell your students about the old fashioned kind of postage meter that
had a little dial you had to roll over one day each morning. That is, if you are old enough to
remember these little beasties!
Lesson Objective: What is pretexting and why is it impermissible? (pg. 241)
Lecture Suggestion: This is such a great example for your students. I hope you can spend some
Activity Suggestion: I have posted an article about pretexting in the Chapter 8 Extra Resources.
You can use it for in-class reading and discussion.
Lesson Objective: How can I avoid being told to be deceitful? (pg. 242)
Lecture Suggestion: It’s what we don’t know that so often gets us into trouble. That’s why your
But I am quite serious about having a framed copy of In re Bishop or In re Lowell.
Lesson Objective: Is it improper to investigate jurors? (pg. 243)
Lecture Suggestion: Some jury lingo: The jury ‘pool’ is the master list of eligible jurors
compiled for the year or shorter period from which persons will be summoned during the
Lesson Objective: Is it improper to talk to the press? (pg. 243)
Lecture Suggestion: This is a good time to talk to your students about the difference between
the Rules and reality. All lawyers talk to the press…it’s the “if the case will be materially
prejudiced” part of the Rule that keeps them all out of contempt.
Lesson Objective: How about overpaying expert witnesses? (pg. 244)
Lecture Suggestion: Have you ever wondered how much the experts were paid in the O.J.
Simpson case (1995)?
Lecture Suggestion: Or giving gifts to judges? (pg. 244)
Lesson Objective: Arizona published an opinion in 1990 to the effect that it is improper to even
give a $5 gift to a judge or member of the judge’s staff during the holiday season. On the other
Video Alert: Video segment # 18 shows Alicia struggling to say thank you in a meaningful way
to a magistrate who went out of his way to resolve a case. Is a thank you note appropriate? How
about a simple handmade gift?
Lesson Objective: Do I really have to do the other guy’s job?
Lecture Suggestion: The lesson here is that we are obligated to give the court up to date law
even if it is contrary to our client’s position.
Video Alert: Video Segment #9 (UPL Issue: Helping Clients Fill Out Forms) shows Client
Hutchinson telling paralegal Alicia that he wants to take advantage of every available loophole.
Lesson Objective: What duties do I have to the court and judicial system? (pg. 246)
Lecture Suggestion: Do not forget the story of Kenneth Heller who was disbarred in New York
for many years of rude behavior.
Unlike when I entered the world of law, it is no longer acceptable to lose your temper at
employees. If your students work for people like this, anger management training is an option.
There are ways to deal with angry people. www.angermgmt.com and
www.angermanagementstrategies.com are two resources.
2007 Pennsylvania: A lawyer accused of stealing money from clients was sentenced to, among
other things, anger management classes.
In re Moity, No. 08-30826 (W.D. La. 5th Cir. April 7, 2009) The district court disbarred Moity
for one year “for his conduct toward a judicial law clerk during a telephone conversation, for
making misrepresentations to the court during a contempt hearing, and for impugning the
integrity of two federal judges in a prior brief before this court.”
Lesson Objective: What’s so bad about Loopholes? (pg. 248)
There is nothing wrong with a loophole.
Video Alert: Video Segment #23 (Zealous Representation: Candor to the Court) shows
Paralegal Judy maybe giving the judge some old law?
Lesson Objective: What Makes a Claim Frivolous? (pg. 248)
Lecture Suggestion: You must tell your students about the 1991 case of a man who sued
Anheuser-Busch company because he did not see the beautiful girls that the beer company said
would appear when a guy drinks their beer. I promise! The complaint is on the website.
Lesson Objective: How Bad is it to Encourage or Aid a Client to Break the Law? (pg. 249)
Lecture Suggestion: In Goebel v. Lauderdale (1989) a bankruptcy lawyer advised his client to
collect money owed on a construction contract and then stop doing the work prior to filing for
bankruptcy. The lawyer did not know that this was a crime in California. The court seemed to
think that researching in the Penal Code was an obvious course of action for this lawyer. Do
you?
Lesson Objective: How is a Prosecutor different? (pg. 249)
Lecture Suggestion: The prosecutor is charged with “doing justice” rather than winning. The
Activity Suggestion: I know there’s not enough time to teach everything you want to teach, but
if you can squeeze in the time to watch My Cousin Vinny, it would be great and your students
will love you for it.
Lesson Objective: What is an Ex Parte Communication and Why is it Bad? (pg. 250)
Lecture Suggestion: An ex parte communication is a communication the opposing party without
Lesson Objective: How do I find the Law?
Answers to End of Chapter 8 Review Questions
Critical Thinking
1. What we learn from the Napster case is that those deleted email could come back to haunt
us.
2. In Lee v. State, the prosecutor threatened a witness right before he was to take the stand.
3. People v. Selby is a disciplinary case. Selby secretly taped an in-chamber discussion with
4. In re Griffith is also a disbarment proceeding. Griffith was disbarred for, among other
Review Questions
1. Diligence means trying hard. It includes being loyal, skilled, thorough, competent
representative for each client.
2. The deceitful evidence things are: suppressing, fabricating, (inducing a witness to lie,
making false affidavits, making false documents, and possibly creating a state of mind),
3. Pretexting is the use of impersonation or fraud to trick another person into releasing
personal information about themselves or others. Pretexting involves a material
4. Paralegals are asked to do deceitful things typically because 1) the lawyer doesn’t know
any better; or 2) the lawyer knows that it is improper for lawyers to be deceitful but
5. We don’t want to give anything of much value to a judge, even innocently, so that it
6. Overpaying expert witnesses looks like a bribe, as well. We don’t want to appear to be
7. We need to explain the law to the court so that the court can make an informed
decision. It used to be that judges had law clerks that did legal research for them but
increasingly courts have been forced to cut back on their resources. If you are aware of
8. A claim is frivolous when it has no basis in fact or law. Rule 3.1 prohibits bringing or
defending frivolity. It is typically brought for the purpose of harassment. A frivolous
Copperfield noted in this Instructor’s Manual.
9. The prosecutor is charged with “doing justice” rather than winning. The prosecutor
10. An ex parte communication is a communication the opposing party without his lawyer
present. It can also be a communication between one party and the judge without the
Cases for Consideration
Case #1: Easton Sports v. Warrior La Crosse
It is unfortunate that the court set out the facts in this numbered list rather than telling it as a
story the way most decisions are written. But there are so many facts and dates that this probably
seemed like the best way to lay everything out in a logical way.
1. As a lawyer I would have advised Ghassemi to give me the CD and his computer and
access to the computer from which he downloaded the information. I would give all of this to
my expert to determine if an expert could discover that this information had been
2. Warrior was sanctioned because it presumably benefited from the stolen information.
Case #2: Midwest Motor Sports v. Arctic Sales
Arctic Cat makes snowmobiles. It had a franchise agreement with Elliott and gave a new one to
A-Tech. Elliott sued Arctic Cat. During that case, Arctic Cat’s lawyers hired a private
investigator (Mohr) to pretend to be a customer and to secretly tape record conversations with
1. Arctic’s lawyers were “frustrated” with the discovery they were getting from the other
2. Rule 5.3 says that the lawyer cannot shield unethical behavior by having someone else do
it.
In the News (pg. 262)
1. Melenez was accused of staging accidents, getting other people to participate in fake
accidents, and submitting false claims to insurance companies. His claims rose to the
2. Insurance fraud is expensive for taxpayers because it raises the price of insurance and
costs the public law enforcement resources.
Video Case Studies
Video Alert: Video Segment #21 shows Michael being asked to lie by his supervising lawyer.
Instead, he offers to buy pretexted information. Both are bad. If he pretends to be someone he is
Video Alert: Video Segment #22 shows our paralegal Alicia with the smoking gun document.
Will she decide to destroy it? To destroy evidence is spoliation of evidence and it is a crime.
Video Alert: Video segment # 18 shows Alicia struggling to say thank you in a meaningful way
to a magistrate who went out of his way to resolve a case. Is a thank you note appropriate? How
about a simple handmade gift? This also comes from something that happened to me. It was a
Video Alert: Video Segment #23 (Zealous Representation: Candor to the Court) shows
Paralegal Judy maybe giving the judge some old law? This video was intentionally left vague so