Rule 3.4. Fairness to opposing party and counsel

A lawyer shall not:

« Rule 3.4. »

(a) 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;

(b) falsify evidence, counsel or assist a witness to testify falsely, or

offer an inducement to a witness that is prohibited by law.

(c) knowingly disobey an obligation under the rules of a tribunal, except

for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to

make reasonably diligent efforts to comply with a legally proper discovery

request by an opposing party;

(e) 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

(f) request a person other than a client to refrain from voluntarily giving

relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be

adversely affected by refraining from giving such information.

COMMENT

[1] 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 the

prohibitions against destruction or concealment of evidence, improperly

ieves that the person’s interests will not be

adversely affected by refraining from giving such information.

COMMENT

[1] 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 the

prohibitions against destruction or concealment of evidence, improperly

influencing witnesses, obstructive tactics in discovery procedure, and the

like.

[2] 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 commencement 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 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.

[3] 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

lice or other prosecuting authority, depending on

the circumstances.

[3] 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.

[4] 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.

NOTES TO DECISIONS

Client relations.

— Conflicts of interest.

Enforcement.

Professional conduct.

Analysis

— Candor toward the tribunal.

— Illegal conduct.

— Obligations to tribunal.

— Opposing counsel.

— Witnesses.

Client relations.

— Conflicts of interest.

It was plain error for the scrivener of a contested will to testify at trial

and also participate in the proceedings as an attorney for one of the parties.

In re Estate of Waters, 647 A.2d 1091 (Del. 1994).

Enforcement.

When a plaintiff, acting pro se, alleged that plaintiff’s former spouse’s

attorney had violated the Lawyers’ Rules of Professional Conduct, the

plaintiff did not have standing to recover damages, even if there had been

ethical violations; there was no basis for enforcement of a lawyer’s ethical

duties outside the framework of disciplinary proceedings. Buchanan v.

Gay, 2006 Del. Super. LEXIS 382 (Del. Super. Ct. Sept. 20, 2006), aff’d,

929 A.2d 783 (Del. 2007).

Attorney who had knowingly violated a protective order was properly

sanctioned to public reprimand because the misconduct was serious,

caused potential injury to the vulnerable teenage victim and caused actual

injury to the legal system. In re Koyste, 111 A.3d 581 (Del. 2015)

dings. Buchanan v.

Gay, 2006 Del. Super. LEXIS 382 (Del. Super. Ct. Sept. 20, 2006), aff’d,

929 A.2d 783 (Del. 2007).

Attorney who had knowingly violated a protective order was properly

sanctioned to public reprimand because the misconduct was serious,

caused potential injury to the vulnerable teenage victim and caused actual

injury to the legal system. In re Koyste, 111 A.3d 581 (Del. 2015).

Because the integrity of the proceedings and the court’s truth-finding

function involving company management disputes between the parties was

threatened by plaintiffs’ actions, based on their payments to witnesses in

exchange for certain testimony, threats against witnesses and threats of

civil litigation on baseless claims, their conspiracy claims were dismissed

against all defendants; certain adverse inferences were also drawn as to

other claims. OptimisCorp v. Waite, 2015 Del. Ch. LEXIS 222 (Del. Ch.

Aug. 26, 2015), aff’d on other grounds, 137 A.3d 970 (Del. 2016).

Professional conduct.

— Candor toward the tribunal.

Attorney violated subsection (b) of this Rule and Prof. Cond. Rules

3.3(a)(1) and 8.4(c) when he identified himself as client’s “nephew” and

submitted falsified evidence to the tribunal in the form of a petition that

identified him as such. In re McCann, 669 A.2d 49 (Del. 1995).

Deputy attorney general was suspended from the practice of law for 6

months and 1 day for 7 ethical violations because the attorney initially

falsely denied making statements (corroborated by a prothonotory also

present) threatening a criminal defendant by implying that the State would

brand that defendant an informant; the attorney admitted only part of the

substance, falsely accusing the defendant of eavesdropping, although later

admitting that the attorney intended for the defendant to hear the

intimidating statements about possible prison reprisals. In re Favata, 119

A.3d 1283 (Del. 2015)

y also

present) threatening a criminal defendant by implying that the State would

brand that defendant an informant; the attorney admitted only part of the

substance, falsely accusing the defendant of eavesdropping, although later

admitting that the attorney intended for the defendant to hear the

intimidating statements about possible prison reprisals. In re Favata, 119

A.3d 1283 (Del. 2015).

Attorney was suspended for an additional 6 months where: (1) the

attorney filed 2 complaints in Superior Court without maintaining a

Delaware office, conduct prejudicial to the administration of justice; (2)

the attorney created a false impression by testifying in a prior disciplinary

matter that the attorney did not currently have any suits pending in

Delaware; (3) the violations were knowing and caused potential harm to

the legal system; (4) suspension was the presumptive sanction; and (5) the

aggravating factors did not sufficiently outweigh the mitigating factors to

warrant disbarment. In re Lankenau, 158 A.3d 451 (Del. 2017).

Disbarment was the appropriate sanction for an attorney’s intentional

misconduct in a medical negligence case, which included failing to

disclose altered medical records, failing to supplement discovery responses

and failing to correct a client’s false testimony (despite multiple

opportunities for corrective action); although the attorney had no prior

disciplinary record and presented evidence of good character and

reputation, dishonesty and other aggravating factors outweighed the

mitigating factors. In re McCarthy, 173 A.3d 536 (Del. 2017).

— Illegal conduct.

Court imposed an 18-month suspension from the practice of law upon a

lawyer who, inter alia, had concealed or destroyed potential evidence

ion); although the attorney had no prior

disciplinary record and presented evidence of good character and

reputation, dishonesty and other aggravating factors outweighed the

mitigating factors. In re McCarthy, 173 A.3d 536 (Del. 2017).

— Illegal conduct.

Court imposed an 18-month suspension from the practice of law upon a

lawyer who, inter alia, had concealed or destroyed potential evidence

relevant to criminal charges against lawyer. In re Melvin, 807 A.2d 550

(Del. 2002).

In an attorney disciplinary matter, an attorney was disbarred as a result

of committing various felonies (violently physically attacking that

attorney’s spouse in front of their children, destruction of evidence and

continual violation of a protective order) in the State of Maine which

violated Law. R. Prof. Conduct 3.4(a) and (c) and 8.4(b), (c), and (d); the

Supreme Court of Delaware rejected the attorney’s defense that the

conduct was the result of 2 brain injuries, as the medical evidence did not

address mental state at the time of the crimes and there was nothing in the

record to suggest that the attorney raised any defense to those crimes

based on the claimed infirmity. In re Enna, 971 A.2d 110 (Del. 2009).

Because there was evidence to support the finding that a suspended

attorney knowingly practiced law multiple times over more than 1 year

during a disciplinary suspension, the lawyer violated multiple disciplinary

rules; the appropriate sanction in the circumstances was disbarment. In re

Member of the Bar of the Supreme Court of Del. Feuerhake, 89 A.3d 1058

(Del. 2014).

— Obligations to tribunal.

Failure to comply with directions of Court in relation to pleadings is a

violation of this Rule. In re Tos, 576 A.2d 607 (Del. 1990).

Attorney violated subsection (c) when, in connection with the

receivership of his law practice, he failed to cooperate with the receiver’s

efforts to gain control over the books and records of the practice. In re

Maguire, 725 A.2d 417 (Del. 1999)

to tribunal.

Failure to comply with directions of Court in relation to pleadings is a

violation of this Rule. In re Tos, 576 A.2d 607 (Del. 1990).

Attorney violated subsection (c) when, in connection with the

receivership of his law practice, he failed to cooperate with the receiver’s

efforts to gain control over the books and records of the practice. In re

Maguire, 725 A.2d 417 (Del. 1999).

Where attorney violated Rule 1.2(a), Rule 1.3, Rule 1.4(a) and (b), Rule

1.15(a) and (d), Rule 1.16(b) and (d), and Rule 3.4 (c), attorney agreed to

pay all the costs of the disciplinary proceedings, the costs of the

investigatory audits performed by the Lawyers’ Fund for Client Protection,

the restitution noted in the parties stipulation, and consented to the

imposition of a public reprimand with a public four-year probation with

conditions. In re Solomon, 745 A.2d 874 (Del. 1999).

Where attorney failed to timely file the affidavit required by Rule 4(a)

(1) of the Delaware Rules for Mandatory Continuing Legal Education, he

violated subsection (c) of this section; thus, a public reprimand was the

appropriate sanction, as the attorney had received a prior private

admonition for similar misconduct in the past. In re McDonald, 755 A.2d

389 (Del. 2000).

Where attorney who had practiced for over 20 years and was found to be

a good lawyer committed professional misconduct by failing to appear at a

scheduled family court hearing and by failing to reschedule two other

teleconferences in family court, which constituted violations of Del. Law.

R. Prof. Conduct 3.4(c) and 8.4(d), the public probation period that

attorney was already serving for prior misconduct was extended for an

additional year. In re Solomon, 847 A.2d 1122 (Del. 2004).

Law. R. Prof

l misconduct by failing to appear at a

scheduled family court hearing and by failing to reschedule two other

teleconferences in family court, which constituted violations of Del. Law.

R. Prof. Conduct 3.4(c) and 8.4(d), the public probation period that

attorney was already serving for prior misconduct was extended for an

additional year. In re Solomon, 847 A.2d 1122 (Del. 2004).

Law. R. Prof. Conduct 1.15(a), 1.15(d), 1.15A, 1.16(d), 3.4(c), 8.1(b),

8.4(d) were violated when for several years the attorney mishandled and

improperly accounted for the attorney’s client’s funds and the attorney’s

escrow account and inaccurately completed certificates of compliance; the

attorney was suspended for 3 years, could apply for reinstatement after 2

years if the attorney fulfilled conditions, and could not return to solo

practice. In re Fountain, 878 A.2d 1167 (Del. 2005).

When an attorney handling 2 estates, inter alia, failed to probate the

estates in a timely manner, the attorney violated Law. R. Prof. Conduct

3.4(c). In re Wilson, 886 A.2d 1279 (Del. 2005); In re Wilson, 900 A.2d

102 (Del. 2006).

Attorney, who was not authorized to practice law in Delaware, was

disbarred for violating Law. R. Prof. Conduct 3.4(c) as, even if the attorney

contacted Pennsylvania authorities to determine whether the attorney’s

conduct violated Delaware law, the attorney was told to contact Delaware

authorities, and did not do so; the attorney knowingly violated a cease and

desist order that prohibited the conduct. In re Tonwe, 929 A.2d 774 (Del.

2007).

While an attorney’s violation of a cease and desist order would have

supported a finding of contempt under Bd. Unauthorized Prac. L. R. 19,

the Delaware Office of Disciplinary Counsel did not abuse its discretion in

proceeding under the attorney disciplinary rules as the same conduct also

constituted knowing disobedience of a court order in violation of Law. R.

Prof. Conduct 3.4(c). In re Tonwe, 929 A.2d 774 (Del. 2007).

of a cease and desist order would have

supported a finding of contempt under Bd. Unauthorized Prac. L. R. 19,

the Delaware Office of Disciplinary Counsel did not abuse its discretion in

proceeding under the attorney disciplinary rules as the same conduct also

constituted knowing disobedience of a court order in violation of Law. R.

Prof. Conduct 3.4(c). In re Tonwe, 929 A.2d 774 (Del. 2007).

Attorney’s conduct in meeting with a former client to provide legal

advice, discussing legal services and fees with a potential client which led

the client to believe that the attorney’s residential services company could

provide legal services and using the attorney’s former law firm email

address in communications with the public at least 6 weeks after a

suspension order violated Law. Prof. Conduct R. 3.4(c). In re Davis, 43

A.3d 856 (Del. 2012).

The Board on Professional Responsibility did not find by clear and

convincing evidence a violation of Law Prof. Conduct R. 3.4(c) where: (1)

the attorney constructively refused court-ordered appointments by

presenting that attorney’s own abilities in such a poor light to clients as to

encourage them to seek other representation; but (2) the attorney requested

documentation and continuances in both cases, a nominal sign of a

willingness to proceed as attorney of record. In re Murray, 47 A.3d 972

(Del. 2012).

Where an attorney engaged in lateness or failure to appear at scheduled

court appearances, tardy requests for postponements, failure to comply

with court-imposed deadlines, “sloppy work and complete disregard to the

Court’s rules and procedure” and wasted judicial resources in 3 Delaware

Courts, in addition to violating the duty of candor to the Supreme Court of

Delaware, the attorney violated Law Prof. Conduct R. 1.1, 1.3, 3.3, 3.4 and

8.4. In re: Poliquin, 49 A.3d 1115 (Del. 2012).

Suspension for 6 months and 1 day was warranted where an attorney:

deadlines, “sloppy work and complete disregard to the

Court’s rules and procedure” and wasted judicial resources in 3 Delaware

Courts, in addition to violating the duty of candor to the Supreme Court of

Delaware, the attorney violated Law Prof. Conduct R. 1.1, 1.3, 3.3, 3.4 and

8.4. In re: Poliquin, 49 A.3d 1115 (Del. 2012).

Suspension for 6 months and 1 day was warranted where an attorney:

(1) violated Law Prof. Conduct R. 1.1, 1.3, 3.3, 3.4 and 8.4; (2) had a

record of 2 prior private admonitions; (3) engaged in a pattern of

misconduct consisting of multiple offenses; (4) suffered from personal or

emotional problems; (5) cooperated with the Office of Disciplinary

Counsel in connection with the hearing; (6) was generally of good

character, as evidenced by willingness to represent those who might not

otherwise have had representation; and (7) exhibited remorse. In re:

Poliquin, 49 A.3d 1115 (Del. 2012).

Attorney admittedly committed disciplinary violations by failing to

comply with continuing legal education (CLE) requirements, and by

failing to respond to communications with the CLE Commission about

that deficiency. In re Poverman, 80 A.3d 960 (Del. 2013).

Attorney who committed various disciplinary violations with respect to

the failure to complete continuing legal education requirements and

reporting obligations relating thereto was publicly reprimanded with

conditions, because: (1) the attorney acted knowingly and had no remorse;

spond to communications with the CLE Commission about

that deficiency. In re Poverman, 80 A.3d 960 (Del. 2013).

Attorney who committed various disciplinary violations with respect to

the failure to complete continuing legal education requirements and

reporting obligations relating thereto was publicly reprimanded with

conditions, because: (1) the attorney acted knowingly and had no remorse;

(2) the attorney did not cause injury to a client; and (3) the aggravating

factors outweighed the mitigating ones. In re Poverman, 80 A.3d 960 (Del.

2013).

Where an attorney, in order to benefit a client, knowingly violated the

Chancery Court’s seizure order enjoining persons from bringing claims

relating to an insurer except in that Court, thereby causing injury to the

insurer and the Insurance Commissioner and prejudice to the judicial

system, the presumptive sanction of suspension was nevertheless reduced

to public reprimand; mitigating factors outweighed the aggravating factors

in the case. In re Brown, 103 A.3d 515 (Del. 2014).

Lawyer engaged in knowing misconduct, for which suspension was the

appropriate discipline, by: (1) assisting a suspended lawyer in the

unauthorized practice of law when the lawyer engaged the suspended

lawyer to work on cases without determining the applicable restrictions;

(2) failing to supervise the suspended lawyer adequately; and (3) giving

the suspended lawyer a percentage of a contingency fee that included work

performed both before and after the suspension. In re Martin, 105 A.3d

967 (Del. 2014).

It was prosecutorial misconduct to vouch for 1 of the State’s 2 key

witnesses, a friend of the victim, by stating in an objection during cross-

examination that the witness had not spoken to defendant since the point

in time defendant shot the victim. McCoy v. State, 112 A.3d 239 (Del.

2015)

ncluded work

performed both before and after the suspension. In re Martin, 105 A.3d

967 (Del. 2014).

It was prosecutorial misconduct to vouch for 1 of the State’s 2 key

witnesses, a friend of the victim, by stating in an objection during cross-

examination that the witness had not spoken to defendant since the point

in time defendant shot the victim. McCoy v. State, 112 A.3d 239 (Del.

2015).

Office of Disciplinary Counsel proved by clear and convincing evidence

that an attorney committed professional conduct violations by knowingly

causing images from a sexual abuse victim’s cell phone to be shown to

both the victim’s parent and defendant in violation of a protective order. In

re Koyste, 111 A.3d 581 (Del. 2015).

— Opposing counsel.

While an attorney has duties of fairness to an opposing party and may

not

engage

in conduct

involving dishonesty, fraud, deceit

or

misrepresentation, an attorney need not affirmatively reveal the weakness

of his case to his opponent. In re Enstar Corp., 593 A.2d 543 (Del. Ch.

1991), rev’d, 604 A.2d 404 (Del. 1992).

New trial was granted where defense counsel’s comments to jury

included an unjustified attack on the integrity of opposing counsel. Putney

v. Rosin, 791 A.2d 902 (Del. Super. Ct. 2001).

— Witnesses.

All Delaware lawyers are bound by the Delaware Lawyers’ Rules of

Professional Conduct to refrain at trial from expressing a personal opinion

on the credibility of a witness. Trump v. State, 753 A.2d 963 (Del. 2000),

overruled in part, Baker v. State, 906 A.2d 139 (Del. 2006).

Defense counsel did not violate subsection (e) of this rule when, during

closing argument, counsel made comments which compared a witness’

testimony on the stand to information provided during meetings conducted

prior to trial. Russo v. Medlab Clinical Testing, Inc., 2001 Del. Super.

LEXIS 464 (Del. Super. Ct. Nov. 14, 2001)

2000),

overruled in part, Baker v. State, 906 A.2d 139 (Del. 2006).

Defense counsel did not violate subsection (e) of this rule when, during

closing argument, counsel made comments which compared a witness’

testimony on the stand to information provided during meetings conducted

prior to trial. Russo v. Medlab Clinical Testing, Inc., 2001 Del. Super.

LEXIS 464 (Del. Super. Ct. Nov. 14, 2001).

First corporation’s motion to approve its designation of a consultant was

granted because, although the consultant was also to be a fact witness, the

compensation the first corporation proposed to pay to the consultant related

to that consultant’s work as such, and not to any willingness to testify

as to the facts underlying the claims; there was no Prof. Conduct R. 3.4(b)

violation. BAE Sys. Info. & Elec. Sys. Integration v. Lockheed Martin

Corp., 2011 Del. Ch. LEXIS 117 (Del. Ch. Aug. 10, 2011).

Del. Rules of Prof'l Conduct Rule 3.5