Rule 3.04. Fairness in Adjudicatory Proceedings

RULE 3.04. Fairness in Adjudicatory Proceedings

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence; in anticipation of a dispute

unlawfully alter, destroy or conceal a document or other material that a competent lawyer

would believe has potential or actual evidentiary value; or counsel or assist another person to

do any such act.

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

acquiesce in the offer or payment of compensation to a witness or other entity contingent

upon the content of the testimony of the witness or the outcome of the case. But a lawyer may

advance, guarantee, or acquiesce in the payment of:

(1) expenses reasonably incurred by a witness in attending or testifying;

(2) reasonable compensation to a witness for his loss of time in attending or testifying;

(3) a reasonable fee for the professional services of an expert witness.

(c) except as stated in paragraph (d), in representing a client before a tribunal:

(1) habitually violate an established rule of procedure or of evidence;

(2) state or allude to any matter that the lawyer does not reasonably believe is relevant

to such proceeding or that will not be supported by admissible evidence, or assert

personal knowledge of facts in issue except when testifying as a witness;

(3) 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, except that a

lawyer may argue on his analysis of the evidence and other permissible considerations

for any position or conclusion with respect to the matters stated herein;

(4) ask any question intended to degrade a witness or other person except where the

lawyer reasonably believes that the question will lead to relevant and admissible

evidence; or

(5) engage in conduct intended to disrupt the proceedings.

y argue on his analysis of the evidence and other permissible considerations

for any position or conclusion with respect to the matters stated herein;

(4) ask any question intended to degrade a witness or other person except where the

lawyer reasonably believes that the question will lead to relevant and admissible

evidence; or

(5) engage in conduct intended to disrupt the proceedings.

(d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules

of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid

obligation exists or on the client’s willingness to accept any sanctions arising from such

disobedience.

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(e) 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 prohibitions against destruction or concealment of evidence, improperly

influencing witnesses, obstructive tactics in discovery procedures, and the like.

2. Documents and other evidence are often essential to establish a claim or defense. The right

of a 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, including Texas, makes

it an offense to destroy material for the purpose of impairing its availability in a pending

proceeding or one whose commencement can be foreseen. See Texas Penal Code,

§§37.09(a)(1), 37.10(a)(3). See also 18 U.S.C

procedural right. The exercise of that right can be frustrated if relevant material is

altered, concealed or destroyed. Applicable law in many jurisdictions, including Texas, makes

it an offense to destroy material for the purpose of impairing its availability in a pending

proceeding or one whose commencement can be foreseen. See Texas Penal Code,

§§37.09(a)(1), 37.10(a)(3). See also 18 U.S.C. §§1501-1515. Falsifying evidence is also

generally a criminal offense. Id. §§37.09(a)(2), 37.10 (a)(l), (2). Paragraph (a) of this Rule

applies to evidentiary material generally, including computerized information.

3. Paragraph (c)(l) subjects a lawyer to discipline only for habitual abuses of procedural or

evidentiary rules, including those relating to the discovery process. That position was adopted

in order to employ the superior ability of the presiding tribunal to assess the merits of such

disputes and to avoid inappropriate resort to disciplinary proceedings as a means of furthering

tactical litigation objectives. A lawyer in good conscience should not engage in even a single

intentional violation of those rules, however, and a lawyer may be subject to judicial sanctions

for doing so.

4. Paragraph (c) restates the traditional Texas position regarding the proper role of argument

and comment in litigation. The obligations imposed by that paragraph to avoid seeking to

influence the outcome of a matter by introducing irrelevant or improper considerations into

the deliberative process are important aspects of a lawyer’s duty to maintain the fairness and

impartiality of adjudicatory proceedings.

5. By the same token, the advocates function is to present evidence and argument so that the

cause may be decided according to law. Refraining from abusive or disruptive conduct is a

corollary of the advocates right to speak on behalf of litigants. A lawyer may stand firm

against abuse by a tribunal but should avoid reciprocation.

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fairness and

impartiality of adjudicatory proceedings.

5. By the same token, the advocates function is to present evidence and argument so that the

cause may be decided according to law. Refraining from abusive or disruptive conduct is a

corollary of the advocates right to speak on behalf of litigants. A lawyer may stand firm

against abuse by a tribunal but should avoid reciprocation.

6. Paragraph (d) prohibits the practice of a lawyer not disclosing a client’s actual or intended

noncompliance with a standing rule or particular ruling of an adjudicatory body or official to

other concerned entities. It provides instead that a lawyer must openly acknowledge the

client’s noncompliance.

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7. Paragraph (d) also prohibits a lawyer from disobeying, or advising a client to disobey, any

such obligations unless either of two circumstances exists. The first is the lawyer’s open

refusal based on an assertion that no valid obligation exists. In order to assure due regard for

formal rulings and standing rules of practice or procedure, the lawyers assertion in this regard

should be based on a reasonable belief. The second circumstance is that a lawyer may

acquiesce in a client’s position that the sanctions arising from noncompliance are preferable to

the costs of compliance. This situation can arise in criminal cases, for example, where the

court orders disclosure of the identity of an informant to the defendant and the government

decides that it would prefer to allow the case to be dismissed rather than to make that

disclosure. A lawyer should consult with a client about the likely consequences of any such

act of disobedience should the client appear to be inclined to pursue that course; but the final

decision in that regard rests with the client.