Rule 3.4. Fairness to Opposing Party and

Fairness to Opposing Party and

Counsel

A lawyer shall not:

(1) Unlawfully obstruct another party’s access

to evidence or unlawfully alter, destroy or conceal

a document or other material having potential evidentiary value. A lawyer shall not counsel or assist

another person to do any such act;

(2) Falsify evidence, counsel or assist a witness

to testify falsely, or offer an inducement to a witness that is prohibited by law;

(3) Knowingly disobey an obligation under the

rules of a tribunal except for an open refusal based

on an assertion that no valid obligation exists;

(4) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent

effort to comply with a legally proper discovery

request by an opposing party;

(5) In trial, allude to any matter that the lawyer

does not reasonably believe is relevant or that will

not be supported by admissible evidence, assert

personal knowledge of facts in issue except when

testifying as a witness, or 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; or

(6) Request a person other than a client to

refrain from voluntarily giving relevant information

to another party unless:

Rule 3.4

(A) The person is a relative or an employee or

other agent of a client; and

(B) The lawyer reasonably believes that the person’s interests will not be adversely affected by

refraining from giving such information.

l litigant or the guilt

or innocence of an accused; or

(6) Request a person other than a client to

refrain from voluntarily giving relevant information

to another party unless:

Rule 3.4

(A) The person is a relative or an employee or

other agent of a client; and

(B) The lawyer reasonably believes that the person’s interests will not be adversely affected by

refraining from giving such information.

(7)

Present,

participate

in

presenting,

or

threaten to present criminal charges solely to

obtain an advantage in a civil matter.

(P.B. 1978-1997, Rule 3.4.)

COMMENTARY: The procedure of the adversary system

contemplates that the evidence in a case is to be marshaled

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.

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 the purpose of impairing its

availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a

criminal offense. Subdivision (1) applies to evidentiary material

generally, including computerized information. Applicable law

may permit a lawyer to take temporary possession of physical

evidence of client crimes for the purpose of conducting a

limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may

require the lawyer to turn the evidence over to the police or

other prosecuting authority, depending on the circumstances

zed information. Applicable law

may permit a lawyer to take temporary possession of physical

evidence of client crimes for the purpose of conducting a

limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may

require the lawyer to turn the evidence over to the police or

other prosecuting authority, depending on the circumstances.

With regard to subdivision (2), it is not improper to pay a

witness’ 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.

Subdivision (6) 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.