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.

COMMENTARY

t 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.

COMMENTARY

[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. 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

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.

[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.