Rule 3.4. FAIRNESS TO OPPOSING PARTY AND COUNSEL

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)

[Reserved]

(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. See also Rule 4.4

(Respect for Rights of Third Persons; Inadvertent Disclosure).

stem 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. See also Rule 4.4

(Respect for Rights of Third Persons; Inadvertent Disclosure).

[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 data stored electronically. 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 (except for expenses and reimbursement for lost

wages) for testifying and that it is improper to pay an expert witness a

contingent fee.

mstances.

[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 (except for expenses and reimbursement for lost

wages) 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.