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.

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

ontemplates 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. 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. 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

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.

Definitional Cross-References

“Knowingly” See Rule 1.0(g)

“Reasonably” See Rule 1.0(i)

“Reasonably believes” See Rule 1.0(j)

“Tribunal” See Rule 1.0(n)