Rule 3.4. Fairness to Opposing Party and Counsel

(a) A lawyer shall not unlawfully obstruct another

party’s access to evidence or unlawfully alter, destroy, or

conceal a document or other material having potential

evidentiary value, nor shall a lawyer counsel or assist another

person to do any of these acts.

(b) A lawyer shall not falsify evidence, counsel or assist

a witness to testify falsely, or offer an inducement to a witness

that is prohibited by law.

(c) A lawyer shall not knowingly violate or disobey an

order of a tribunal or an obligation under the rules of a

tribunal, except for an open refusal based on an assertion that

the order is invalid or that no valid obligation exists.

(d) A lawyer shall not make a frivolous discovery

request or fail to make reasonably diligent effort to comply

with a legally proper discovery request by an opposing party.

(e) A lawyer shall not in trial allude to any matter that

the lawyer does not reasonably believe is relevant or that will

not be supported by admissible evidence. A lawyer shall not

assert personal knowledge of facts in issue except when

testifying as a witness, nor state a personal opinion as to the

justness of a cause, the credibility of a witness, the culpability

of a civil litigant, or the guilt or innocence of an accused.

(f) A lawyer shall not request that a person other than a

client refrain from voluntarily giving relevant information to

another party unless the person is a relative or an employee or

other agent of a client and the lawyer reasonably believes that

the person’s interests will not be adversely affected by

refraining from giving the information.

ALASKA COMMENT

The Committee amended paragraph (c) to make clear that

the rule prohibits knowing disobedience of a specific order of a

court as well as the general rules of procedure.

Documents and other items of evidence are often essential

to establish a claim or defense

asonably believes that

the person’s interests will not be adversely affected by

refraining from giving the information.

ALASKA COMMENT

The Committee amended paragraph (c) to make clear that

the rule prohibits knowing disobedience of a specific order of a

court as well as the general rules of procedure.

Documents and other items of evidence are often essential

to establish a claim or defense. Subject to evidentiary

privileges, the right of an opposing party, including the

government, to obtain evidence through discovery or subpoena

is an important procedural right. The exercise of that right can

be frustrated if relevant material is altered, concealed, or

destroyed. Applicable law in many jurisdictions makes it an

offense to destroy material for purpose of impairing its

availability in a pending proceeding or one whose commence-

ment can be foreseen. Falsifying evidence is also generally a

criminal offense. Paragraph (a) applies to evidentiary material

generally, including computerized information. Applicable law

may permit a lawyer to take temporary possession of physical

evidence relevant to criminal charges that have been brought

or may be brought against the lawyer’s client, so that the

lawyer can conduct a limited examination that will not alter or

destroy material characteristics of the evidence. In such a case,

Alaska law requires the defense attorney to turn the physical

evidence over to the authorities. Moreover, if the evidence

was obtained from a third party who was not acting for the

client, the defense attorney can be required to disclose the

manner in which the evidence was obtained. See Morrell v.

State, 575 P.2d 1200, 1206-1212 (Alaska 1978); Gipson v.

State, 609 P.2d 1038, 1043 & n.2 (Alaska 1980); and

McCormick v. Anchorage, 999 P.2d 155, 162-63 (Alaska App.

2000).

COMMENT

The procedure of the adversary system contemplates that

the evidence in a case is to be marshalled competitively by the

contending parties

disclose the

manner in which the evidence was obtained. See Morrell v.

State, 575 P.2d 1200, 1206-1212 (Alaska 1978); Gipson v.

State, 609 P.2d 1038, 1043 & n.2 (Alaska 1980); and

McCormick v. Anchorage, 999 P.2d 155, 162-63 (Alaska App.

2000).

COMMENT

The procedure of the adversary system contemplates that

the evidence in a case is to be marshalled competitively by the

contending parties. Fair competition in the adversary system is

secured by prohibitions against destruction or concealment of

evidence, improperly influencing witnesses, obstructive tactics

in discovery procedure, and the like.

With regard to paragraph (b), it is not improper to pay a

witness’s expenses or to compensate an expert witness on

terms permitted by law. The common law rule in most

jurisdictions is that it is improper to pay an occurrence witness

any fee for testifying and that it is improper to pay an expert

witness a contingent fee.

Paragraph (f) permits a lawyer to advise employees of a

client to refrain from giving information to another party, for

the employees may identify their interests with those of the

client. See also Rule 4.2.