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Case 1:20-cr-00330-AJN Document 610-3 Filed 02/24/22 Page 33 of 117
A-5849
Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 7 of 29

trial based on juror misconduct (nor did the firm give any consideration to that possibility) from the time of the verdict and until after receipt on June 20 of juror Conrad’s letter to the prosecutor and the ensuing investigation.

Events in July 2011

The July 8 Memorandum of Law

20. The memorandum does not reference the discoveries in March or May. There was no duty to do so. I accept that the Brune & Richard lawyers could anticipate a possible waiver claim and could see how the government could cite the information that they had in March and May to bolster that claim. But the lawyer ethics rules impose no general duty to volunteer information that an opponent might use to support its argument and the exceptions in the rules cited do not create one specifically.⁵

21. To put it otherwise, in order to find a duty to reveal there must be a source of the duty. Professional conduct rules do impose duties to reveal, but they do so in a way that gives lawyers notice of their requirements. No rule required disclosure of the information discovered in March or May. Any such rule would have to specify the information required to be revealed and the level of confidence in the accuracy of that information. Here, the rules imposing a duty to disclose to the tribunal are Rules 3.3(b) and 3.5(d). These rules use actual knowledge as the level of confidence required for the duty to disclosure. The information the lawyers had about the material they had gathered in March and May negates actual knowledge; the actions of the lawyers are consistent only with a conclusion of a lack of actual knowledge. In sum, only if the lawyers had had actual knowledge in March or May would they have had to reveal that in July, and they did not have actual knowledge.

22. In certain places, the memorandum contains statements that are apparently alleged to imply that the Brune & Richard lawyers did not have information about juror Conrad’s identity prior to June 20, when they received a copy of her letter to the government.

⁵ Because the premises of the adversary system are central here, instruction from the contiguous world of Rule 11 is again apt:

The primary purpose of Rule 11 is to deter baseless court filings, but this goal must be considered in light of the fact that, in an adversary system of litigation, the essence of the lawyer's task is to present issues of facts and law “as favorably as fairly possible” in support of the client's claim. See United Nat. Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1115 (9th Cir. 2001). Therefore, judges should “impose sanctions on lawyers for their mode of advocacy only in the most egregious situations, lest lawyers be deterred from vigorous representation of their clients.” Id. (citing Schlaifer Nance & Co., Inc. v. Estates of Warhol, 194 F.3d 323, 341 (2nd Cir. 1999).

Desert Outdoor Advertising, Inc. v. City of Oakland, 2009 WL 943948 at *3 (N.D. Cal. Apr. 7 2009).

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