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Case 1:20-cr-00330-AJN Document 616-3 Filed 02/24/22 Page 32 of 117
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identical form³ and it has also adopted Rule 3.5(d). These rules mandate disclosure of certain information to a court even if disclosure may harm the client and, for Rule 3.3 explicitly and Rule 3.5(d) implicitly, even if the information is protected as confidential client information. See New York Rule 3.3(c).⁴ But the duty arises only if the lawyer has "actual knowledge."

13. A second decision also recognizes the delicate balance between the adversary system and duties to a litigation opponent or the tribunal. In re Pennie & Edmonds LLP, 323 F.3d 86 (2nd Cir. 2003) was an appeal of Rule 11 sanctions. When a party seeks Rule 11 sanctions, the target of the motion has a 21-day "safe harbor" within which to withdraw or correct the challenged submission. If it does not, the "mental state applicable to liability for Rule 11 sanctions is objective unreasonableness." Id. at 90. When, however, a court initiates a sanction proceeding, as by order to show cause, there is no safe harbor. Because the lawyer cannot take it back, Pennie & Edmonds holds that the required mental state is "bad faith," a subjective test like actual knowledge. The Court explained that "[a]ny regime of sanctions for a lawyer's role in the course of representing a client inevitably has implications for the functioning of the adversary system." Id. In support of its holding, the Court cited the interest of "[a] vigorous adversary system." Id. at 91.

14. In sum, from the perspective of a lawyer's ethical obligations, the premises of our "vigorous adversary system" control unless the situation is governed by an express exception in ethics rules, statutes, judicial decisions, or other law. These exceptions, which are written with appreciation of the need for precision, give lawyers notice of the duties that override their adversarial obligations. As the Supreme Court wrote in a different context in Polk County v. Dodson, 454 U.S. 312 (1981):

Within the context of our legal system, the duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are "officers of the court." But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor "under color of state law" within the meaning of § 1983. In our system a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing "the undivided interests of his client."

Id. at 318 (footnotes omitted). The question I turn to now is whether lawyers from Brune & Richard LLP acted in violation of any of the exceptions to their duties in the adversary system by not disclosing certain information prior to their July 21, 2011, letter to the Court.

³ See http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/3_3.authcheckdam.pdf (last visited April 5, 2012).

⁴ The ABA Model Rules do not contain Rule 3.5(d). In my view, its mandate appears duplicative of a lawyer's obligations under New York and Model Rule 3.3(b).

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