Rule 3.4. Fairness to Opposing Party and Counsel

RULE 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 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.

Adopted July 1, 2009, effective January 1, 2010.

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 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

templates 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.

[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 for a lawyer to pay a witness or prospective

witness the reasonable expenses incurred in providing evidence or to compensate an expert witness

on terms permitted by law. Expenses paid to a witness or prospective witness may include

reimbursement for reasonable charges for travel to the place of a deposition or hearing or to the

place of consultation with the lawyer and for reasonable related out-of-pocket costs, such as for

hotel, meals, or child care, as well as compensation for the reasonable value of time spent attending

a deposition or hearing or in consulting with the lawyer

a witness or prospective witness may include

reimbursement for reasonable charges for travel to the place of a deposition or hearing or to the

place of consultation with the lawyer and for reasonable related out-of-pocket costs, such as for

hotel, meals, or child care, as well as compensation for the reasonable value of time spent attending

a deposition or hearing or in consulting with the lawyer. An offer or payment of expenses may not

be contingent on the content of the testimony or the outcome of the litigation, or otherwise

prohibited by law.

[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.

Adopted July 1, 2009, effective January 1, 2010.

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