A lawyer is an advocate, but not a hired weapon. Professional responsibility permits forceful representation, creative argument, and persistent pursuit of lawful client objectives. It does not permit lying to courts, hiding evidence, obstructing access to proof, abusing witnesses, filing frivolous claims, or turning litigation into fraud.
The advocacy rules define the boundaries of lawful representation in disputes. They govern claims and defenses, candor to courts, false evidence, ex parte proceedings, fairness in discovery, witness preparation, communications with represented and unrepresented persons, trial publicity, prosecutors, and situations where a lawyer may also be a witness.
This chapter focuses on the lawyer’s duties as an advocate. These rules are heavily tested on the MPRE because they force students to balance loyalty to the client against duties to tribunals, opposing parties, witnesses, the public, and the justice system.
I Doctrinal Framework
An advocacy problem should proceed in sequence.
Identify the Setting
Is the lawyer acting in litigation, a tribunal proceeding, discovery, negotiation, criminal prosecution, ex parte matter, public statement, or nonadjudicative proceeding?
Identify the Role
Is the lawyer counsel for a civil plaintiff, civil defendant, criminal defendant, prosecutor, government lawyer, transactional advocate, or lawyer-witness?
Identify the Duty
Common advocacy duties include meritorious claims, candor to the tribunal, fairness to opposing parties, respect for evidence, proper witness handling, limits on communications, proper publicity, and prosecutor-specific obligations.
Knowledge & Intent
Determine whether the lawyer knows the relevant fact. Many advocacy rules depend on knowledge. A lawyer must not knowingly make false statements, knowingly offer false evidence, or knowingly disobey tribunal rules.
Remedial Duty
If false evidence has been offered or a false statement made, the lawyer may need to correct it, remonstrate with the client, seek withdrawal, or disclose to the tribunal if necessary.
Proper Outcome
The lawyer may proceed, must correct, must refuse, must withdraw, may disclose, must disclose, or must avoid the conduct entirely.
II. Meritorious Claims and Contentions
A lawyer must not bring or defend a proceeding, or assert an issue, unless there is a basis in law and fact that is not frivolous. This rule applies to complaints, defenses, motions, appeals, discovery positions, and legal contentions.
A claim is not frivolous merely because it is unlikely to win. Lawyers may make good-faith arguments for extension, modification, or reversal of existing law. Legal development depends on lawyers challenging old rules, distinguishing precedent, and presenting new theories. But there must be a nonfrivolous basis.
A lawyer may also defend a proceeding by requiring the opposing party to prove its case. This is especially important in criminal defense. A defense lawyer may require the prosecution to prove every element beyond a reasonable doubt even if the lawyer does not personally believe the defendant is factually innocent.
Diligent advocacy does not permit baseless litigation. A lawyer may be aggressive, but not frivolous. The difference is whether there is a good-faith legal and factual basis.
Exam Tip
Do not confuse weak with frivolous. A weak argument may still be proper if supported by a good-faith basis in law and fact. A frivolous argument lacks a legitimate legal or factual foundation.
III. Expediting Litigation
A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client. Delay may sometimes benefit a client, but delay for delay’s sake is improper.
A lawyer may request reasonable extensions, investigate thoroughly, prepare carefully, and use legitimate procedural rights. But the lawyer may not obstruct proceedings merely to burden the opponent, increase costs, or postpone inevitable results without a proper purpose.
The MPRE often tests this through discovery delays, repeated continuances, frivolous motions, and refusal to cooperate with scheduling. The lawyer’s duty of diligence to the client does not override the duty to avoid abusive delay.
IV. Candor to the Tribunal
Candor to the tribunal is one of the most important advocacy duties. A lawyer must not knowingly make a false statement of fact or law to a tribunal. A lawyer also must not fail to correct a false statement of material fact or law previously made to the tribunal.
This duty applies to courts, arbitrators, administrative agencies, and other adjudicative bodies. It applies in written filings, oral argument, evidentiary presentations, and communications with the tribunal.
A lawyer may argue reasonable inferences from the evidence. A lawyer may characterize facts favorably. A lawyer may distinguish adverse authority. But the lawyer may not knowingly lie.
For example, if a lawyer tells the court, “My client has never been sanctioned,” and later learns that the statement was false and material, the lawyer must correct it. Silence is not acceptable when the lawyer has made a material false statement.
V. Adverse Legal Authority
A lawyer must disclose controlling legal authority directly adverse to the client’s position if opposing counsel has not disclosed it.
This rule surprises students because advocacy usually allows a lawyer to emphasize favorable law. But candor requires disclosure of controlling adverse authority. The lawyer may then argue that the authority is distinguishable, wrongly decided, limited by later developments, or should be modified. What the lawyer may not do is hide controlling adverse law from the tribunal.
The rule applies to controlling authority, not every unfavorable case from another jurisdiction or every secondary source. The authority must be directly adverse and not disclosed by the opponent.
VI False Evidence & Remedial Measures
A lawyer must not knowingly offer evidence the lawyer knows to be false. If a lawyer, client, or witness has offered material false evidence, the lawyer must take reasonable remedial measures.
The Remedial Sequence (When False Evidence is Offered)
This duty may override confidentiality. That is central. A lawyer generally must protect client information, but the lawyer may not permit the tribunal to be deceived by material false evidence.
The duty continues to the conclusion of the proceeding. A lawyer cannot ignore known false evidence simply because it has already been admitted.
Common Trap
Do not choose an MPRE answer that allows the lawyer to “let the false testimony stand” because of confidentiality. Candor to the tribunal may require remedial measures, including disclosure if necessary.
VII. Criminal Defendant Perjury & Ex Parte Proceedings
Criminal Defendant Perjury
Criminal defendant perjury is especially sensitive because the lawyer must respect constitutional protections, the client’s autonomy, and the duty of candor.
A lawyer may not knowingly offer false testimony, even from a criminal defendant. If the defendant intends to testify falsely, the lawyer should first counsel the defendant not to do so and explain the consequences. If the defendant persists, the lawyer must take appropriate steps consistent with the rules and law.
Jurisdictions vary on details, including narrative testimony, withdrawal, and disclosure. For MPRE purposes, the main principles are clear: the lawyer must not assist perjury, must not knowingly offer false evidence, and must take reasonable remedial measures if false evidence is offered.
A lawyer may still require the prosecution to prove its case. The lawyer may challenge credibility, cross-examine witnesses, and argue that the government has not met its burden. But the lawyer may not present testimony the lawyer knows is false.
Ex Parte Proceedings
An ex parte proceeding occurs when the tribunal acts without the opposing party present. Because the adversary is absent, the lawyer has a heightened duty of candor.
In an ex parte proceeding, the lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not those facts are adverse.
This duty is stronger than ordinary advocacy. In a typical adversarial hearing, the opposing party can present contrary facts. In an ex parte setting, the tribunal relies heavily on the lawyer’s completeness and honesty. Examples include temporary restraining orders, emergency custody orders, certain probate applications, and other proceedings where immediate relief may be sought without notice.
VIII. Fairness to Opposing Party and Counsel
Advocacy must be fair. A lawyer must not unlawfully obstruct another party’s access to evidence, alter, destroy, or conceal material with evidentiary value, falsify evidence, counsel or assist false testimony, knowingly disobey tribunal rules, make frivolous discovery requests, or fail to make reasonably diligent discovery responses.
These duties protect the adversarial system. Litigation assumes both sides can obtain evidence, test proof, and present arguments. If lawyers hide documents, coach lies, or obstruct witnesses, the system fails.
A lawyer may assert legitimate privileges, object to improper discovery, seek protective orders, and challenge burdensome requests. But the lawyer may not destroy or conceal evidence simply because it hurts the client.
IX. Evidence Preservation
A lawyer must not unlawfully alter, destroy, or conceal evidence. This applies to documents, digital files, emails, text messages, physical objects, recordings, metadata, and other materials with evidentiary value.
The duty becomes especially important when litigation is pending or reasonably anticipated. A lawyer should advise clients to preserve relevant evidence and suspend routine destruction practices when appropriate.
A client may continue ordinary business operations, but cannot destroy relevant materials to prevent discovery. A lawyer who directs or assists destruction may face discipline, sanctions, contempt, disqualification, or worse.
Hypothetical
"A company client receives a discovery request for internal safety emails. The emails are damaging. The general counsel tells outside litigation counsel, 'Let’s delete them and say they were lost in a server migration.'"
The lawyer cannot participate. Deleting responsive evidence is obstruction. The lawyer must refuse to assist, counsel the client about preservation duties, and take appropriate remedial steps if destruction has occurred or is threatened.
The lawyer’s duty of loyalty does not include helping a client hide proof.
X. Witness Preparation and Witness Coaching
A lawyer may prepare a witness. Proper witness preparation includes reviewing documents, explaining courtroom procedure, discussing likely questions, clarifying memory, identifying relevant topics, and encouraging truthful testimony.
A lawyer may not coach a witness to lie. The lawyer may not tell a witness to “forget” facts, exaggerate injuries, change dates, avoid service, or shape testimony falsely. The line is between preparation and fabrication.
Proper preparation helps truthful testimony become clear and organized. Improper coaching changes truth into strategy.
For example, a lawyer may say, “Listen carefully to the question and answer truthfully.” A lawyer may not say, “If they ask whether you saw the contract, say no, because that helps us.”
XI. Requests Not to Provide Information
A lawyer generally must not request a person other than a client to refrain from voluntarily giving relevant information to another party. There is a narrow exception when the person is a relative, employee, or agent of a client, and the lawyer reasonably believes the person’s interests will not be adversely affected by refraining.
This rule prevents lawyers from improperly shutting down access to witnesses. A lawyer may advise a client not to speak to the opposing side. But nonclient witnesses generally remain free to provide relevant information voluntarily.
The exception recognizes that relatives, employees, and agents may have interests aligned with the client, but even then the lawyer must reasonably believe the person’s interests will not be harmed.
XII Communications with Represented Persons
A lawyer must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the other lawyer consents or law or court order authorizes the communication.
This is the “no-contact” rule. It applies even if the represented person initiates the contact. The lawyer should not respond substantively. The lawyer should direct the person to communicate through counsel.
The rule protects represented persons from overreaching, preserves the lawyer-client relationship, and prevents opposing counsel from exploiting direct access.
For organizations, the rule may apply to certain constituents, such as persons who supervise or regularly consult with the organization’s lawyer, persons whose acts may bind the organization, or persons whose statements may be admissions of the organization. The exact scope can be fact-sensitive.
Common Trap
Do not assume a lawyer may talk freely to a represented person just because that person calls first. If the lawyer knows the person is represented in the matter, communication about the subject generally must go through counsel.
XIII. Communications with Unrepresented Persons
A lawyer may communicate with an unrepresented person, but must be careful. The lawyer must not state or imply that the lawyer is disinterested. If the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role, the lawyer must make reasonable efforts to correct the misunderstanding.
If the unrepresented person’s interests have a reasonable possibility of conflict with the lawyer’s client’s interests, the lawyer generally must not give legal advice other than advice to secure counsel.
For example, a lawyer representing a landlord may speak with an unrepresented tenant about scheduling or settlement discussions, but may not imply neutrality or advise the tenant that the settlement is legally best for the tenant. The lawyer represents the landlord.
XIV. Trial Publicity
A lawyer participating in a matter must not make extrajudicial statements the lawyer knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing the proceeding.
The purpose is to protect fair adjudication. Public statements can influence jurors, pressure witnesses, taint the community, and undermine confidence in the process.
Lawyers may still state certain basic information, such as the claim or offense, identity of persons involved, information in the public record, scheduling matters, and requests for assistance. In criminal cases, lawyers may provide limited information such as the identity of the accused, arrest details, and warnings when appropriate, subject to limits.
A lawyer may also make a statement reasonably necessary to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or client. This is sometimes called a right of reply. The response must be limited to what is necessary.
XV. Lawyer as Witness
A lawyer generally must not act as advocate at a trial in which the lawyer is likely to be a necessary witness.
There are exceptions. The lawyer may act as advocate if:
- The testimony relates to an uncontested issue.
- The testimony concerns the nature and value of legal services rendered in the case.
- Disqualification would work substantial hardship on the client.
The concern is role confusion. A lawyer who argues the case and testifies as a witness may confuse the jury, appear to vouch for the case, or create conflicts between advocacy and testimony.
Another lawyer in the same firm may be able to serve as advocate unless conflict rules prohibit it. The lawyer-as-witness rule is not always imputed automatically in the same way as conflicts, but conflict analysis may still be necessary.
XVI Special Duties of a Prosecutor
A prosecutor is not merely an advocate. A prosecutor is a minister of justice. The prosecutor’s duty is not simply to win convictions, but to seek justice.
Probable Cause
Must refrain from prosecuting charges not supported by probable cause. Cannot use charges as leverage when lacking.
Right to Counsel
Must make reasonable efforts to ensure the accused is advised of the right to counsel. Cannot seek waiver of pretrial rights from an unrepresented accused.
Disclosure Duties (Brady)
Must timely disclose evidence or information that tends to negate guilt or mitigate the offense. A prosecutor who possesses exculpatory or mitigating information cannot hide it because disclosure weakens the case.
A prosecutor must also exercise care with public statements that may heighten public condemnation of the accused. The prosecutor represents the sovereign, not a private client seeking victory at all costs.
XVII. Advocacy in Nonadjudicative Proceedings
Lawyers also advocate before legislative bodies, administrative agencies, and other nonadjudicative decision makers. In those settings, the lawyer must disclose that the appearance is in a representative capacity when the lawyer is representing a client.
The lawyer may lobby, argue policy, present data, and urge action. But the lawyer must not mislead the body about the lawyer’s role. Professional duties of honesty, fairness, and confidentiality still matter.
XVIII. Application and Analysis
"A civil lawyer discovers that the client gave false deposition testimony about a key document. The testimony is material because the document affects liability. The client says, 'Leave it alone. Nobody will know.'"
The lawyer may not ignore the falsehood. The lawyer should first remonstrate with the client confidentially, explain the duty of candor, and urge the client to correct the testimony. If the client agrees, the lawyer can help make the correction through proper procedures.
If the client refuses, the lawyer must take reasonable remedial measures. Withdrawal may be considered if it will remedy the problem and is permitted. But if withdrawal will not correct the false evidence, the lawyer may need to disclose to the tribunal if necessary.
The lawyer may not hide behind confidentiality. The duty of candor to the tribunal can override the normal duty to protect client information when material false evidence threatens the integrity of the proceeding.
XIX. Bar-Style Analysis Notes
- For meritorious-claim questions, ask whether there is a nonfrivolous basis in law and fact. Remember that good-faith law reform arguments are allowed, and criminal defense lawyers may require proof of every element.
- For candor questions, ask whether the lawyer knowingly made a false statement, failed to correct a false statement, failed to disclose controlling adverse authority, or offered false evidence.
- For false evidence, identify the sequence: remonstrate, seek correction, consider withdrawal, and disclose to the tribunal if necessary.
- For ex parte proceedings, remember the heightened duty to disclose all material facts necessary for an informed decision, even adverse facts.
- For fairness questions, look for destruction of evidence, concealment, false testimony, discovery abuse, frivolous requests, or improper trial statements.
- For witness questions, distinguish preparation from coaching. Truthful preparation is allowed; false shaping is forbidden.
- For communications, distinguish represented persons from unrepresented persons. Represented persons are contacted through counsel. Unrepresented persons must not be misled.
- For publicity, ask whether the statement is public, likely to be disseminated, and substantially likely to materially prejudice the proceeding.
- For prosecutors, remember the minister-of-justice role, probable cause requirement, counsel-related duties, disclosure of exculpatory and mitigating evidence, and restraint in public statements.
Exam Tip
When an MPRE advocacy question includes the words “knowingly false,” “material,” “tribunal,” or “evidence,” slow down. Candor duties may override ordinary confidentiality analysis.
Common Trap: Do not treat “zealous advocacy” as permission to do anything helpful to the client. The rules permit hard advocacy, not dishonest advocacy.
Chapter Summary
Advocacy has boundaries. A lawyer may represent a client forcefully, but must not file frivolous claims, mislead courts, falsify evidence, obstruct discovery, coach witnesses to lie, improperly contact represented persons, or prejudice proceedings through public statements.
A lawyer must not bring or defend a proceeding or assert an issue without a nonfrivolous basis in law and fact. Good-faith arguments for changing the law are allowed. Criminal defense lawyers may require the prosecution to prove every element.
Candor to the tribunal requires truthful statements of fact and law, correction of prior material false statements, disclosure of controlling adverse legal authority not disclosed by the opponent, and refusal to offer evidence known to be false. If material false evidence has been offered, the lawyer must take reasonable remedial measures, which may include disclosure to the tribunal if necessary.
Ex parte proceedings require heightened candor because the opposing party is absent. The lawyer must disclose material facts needed for an informed decision, even if adverse.
Fairness to opposing parties and counsel prohibits obstruction of evidence, destruction or concealment of material, falsification of proof, assistance with false testimony, improper discovery conduct, and unsupported trial assertions.
Witness preparation is allowed; witness coaching is not. A lawyer may prepare a witness to testify truthfully but may not shape false testimony.
A lawyer must not communicate about the matter with a represented person without consent or legal authorization. With unrepresented persons, the lawyer must avoid implying neutrality and may generally advise only to seek counsel when interests may conflict.
Trial publicity is limited when public statements are substantially likely to materially prejudice a proceeding. Lawyers may provide certain basic information and may respond narrowly to undue prejudicial publicity.
A lawyer generally may not serve as advocate at a trial where the lawyer is likely to be a necessary witness, subject to limited exceptions.
Prosecutors have special duties as ministers of justice. They must not prosecute without probable cause, must respect counsel-related rights, must disclose exculpatory and mitigating evidence, and must avoid improper public condemnation of the accused.
The central lesson is that advocacy is controlled by truth, fairness, and institutional integrity. A lawyer may fight hard, but must not convert representation into deception, obstruction, or abuse.
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