Rule 32:3.4. FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer shall not:

(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 a reasonably

diligent effort 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

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.

[2] Documents and other items of evidence are often essential to establish a claim or defense

ntemplates 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.

[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. The law may make 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.

Paragraph (a) applies to evidentiary material generally, including computerized information. The

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, the 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, including loss of

time in attending or testifying, or to compensate an expert witness on terms permitted by law. It is

improper to pay an occurrence witness any fee other than as authorized by law for testifying and 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 32:4.2.