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Video Course Evaluation Form My Name Is Garden State CLE 2000 Hamilton Avenue Hamilton, New Jersey 08619 (609) 584-1924 – Phone (609) 584-1920 - Fax Video Course Evaluation Form My Name is: __________________________________________ Name of Course: ______________________________________ My Street address: _____________________________________ City: _____________________ State: _____ Zip Code: ____ Email Address: ________________________________________ Please Circle the Appropriate Answer Instructors: Poor Satisfactory Good Excellent Materials: Poor Satisfactory Good Excellent CLE Rating: Poor Satisfactory Good Excellent Required: Secret words that appeared on the screen during the seminar. 1) __________________________ 2) _______________________ 3) __________________________ 4) _______________________ What did you like most about the seminar? _____________________________________________________________ _____________________________________________________________ What criticisms, if any, do you have? _____________________________________________________________ _____________________________________________________________ I certify that I watched, in its entirety, the above-listed CLE Course. Signature ___________________________________ Date_________ In order to receive your CLE credits, please send our payment and this completed form to Garden State CLE, 2000 Hamilton Avenue, Hamilton, New Jersey, 08619. Garden State CLE presents: Ethical Issues in the HBO series "The Night Of" ! Lesson Plan Introduction This highly acclaimed HBO eight-part mini-series was based upon a British production called "Criminal Justice." It was originally supposed to star the late James Gandolfini as the protagonist, attorney John Stone. However, upon Gandolfini's passing in 2013, the role went to John Turturro. _____________________________ Directed by Steve Zaillian, the series was shot in a classic film-noir style and portrays how the workings of the criminal justice system can devastate defendants, their families, friends and entire communities. ______________________________ Beyond the dark and brooding aspects of the story line, "The Night Of" has special significance for practicing attorneys as it explores a large number of critical ethics issues that are common to both the civil and criminal practice. This Garden State CLE will explore some of those issues. _______________________________ Plot Nasir "Naz" Khan is a naive Pakistani-American college student living in Queens, New York. While using his father's cab one night with intentions to attend a popular party, Naz picks up a young woman, Andrea. After a night of sex and drugs with the woman, Naz wakes and finds her stabbed to death; he has no recollection of what happened. Naz leaves the scene but is arrested for a minor traffic violation shortly after. At the station, he declines to answer calls to his mobile phone from his parents, who are worried about him and trying to reach him. When searching Naz, the police find a knife in his pocket matching the suspected murder weapon. In addition, several witnesses identify him as having been at the crime scene. Naz is interrogated by detective Dennis Box and eventually asks for a lawyer, but one is not provided, until world- weary, struggling defense attorney John Stone hears of the case and steps in to represent Naz. Chapter I "I'm here to see my client." ! RPC 7.3 Personal Contact with Prospective Clients (b) A lawyer shall not contact, or send a written or electronic or other form of communication to, a prospective client for the purpose of obtaining professional employment if: (1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer; ________________ Ohralik v. Ohio State Bar Association, 98 S. Ct. 1912 (1978). (a) A lawyer's solicitation of business through direct, in- person communication with the prospective clients has long been viewed as inconsistent with the profession's ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. P. 1917. (b) The State does not lose its power to regulate commercial activity deemed harmful to the public simply because speech is a component of that activity. Pp. 1918-1919. (c) A lawyer's procurement of remunerative employment is only marginally affected with First Amendment concerns. While entitled to some constitutional protection, appellant's conduct is subject to regulation in furtherance of important state interests. Pp. 1919-1920. (d) In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions, especially members of the Bar. Protection of the public from those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of “vexatious conduct” is a legitimate and important state interest. Pp. 1920-1922. (e) Because the State's interest is in averting harm by prohibiting solicitation in circumstances where it is likely to occur, the absence of explicit proof or findings of harm or injury to the person solicited is immaterial. The application of the Disciplinary Rules to appellant, who solicited employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert, does not offend the Constitution. Pp. 1922-1925. Chapter II "The truth doesn't help you." ! Part 1 - Candor RPC 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures; or (5) fail to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal, except that it shall not be a breach of this rule if the disclosure is protected by a recognized privilege or is otherwise prohibited by law. (b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by RPC 1.6. (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse. Part 2 - Proof of Facts Mitchell v. United States, 526 U.S. 314, 330 (1999) The rule against adverse inferences is a vital instrument for teaching that the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant's individual rights. The Government retains the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self- incrimination privilege. Nix v. Whiteside, 475 U.S. 157, 166 (1986) In Strickland, we recognized counsel's duty of loyalty and his "overarching duty to advocate the defendant's cause." Plainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. This principle has consistently been recognized in most unequivocal terms by expositors of the norms of professional conduct since the first Canons of Professional Ethics were adopted by the American Bar Association in 1908. Chapter III "Right place....Right time" ! RPC 3.1 Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law, or the establishment of new law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. ________________________________ For written pleadings, see Rule 1:4-8(a)(2) which excuses writings from being ruled as frivolous when the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. Chapter IV "I won't rest until everything that can be done is done" ! RPC 1.5 Fees (a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required,
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