Fairness to opposing party and counsel (Rule 3.4)

Special Coverage

PROPOSED RULES OF PROFESSIONAL CONDUCT

Whether providing transactional or litigation services, lawyers are advocates. Despite this, the means by which attorneys support their clients’ goals cannot be without bounds. Proposed Rule of Professional Conduct 3.4, which addresses fairness to opposing parties and their counsel, provides direction as to some of the limits.

Many of the concepts in proposed Rule 3.4 should be recognizable to California lawyers. It is an aggregate of four authorities. Three are existing Rules of Professional Conduct 5-200(E), 5-220, and 5-310. The fourth is Model Rule 3.4, which may be less familiar.

If adopted as proposed, the existing direction from Rules 5-200(E), 5-220 and 5-310 would remain relatively unchanged. These provide that lawyers may not assert personal knowledge of facts at issue unless they are testifying as a witness, suppress information that they or their clients have an obligation to reveal or produce, cause a witness to make themselves unavailable by hiding or leaving the jurisdiction, or paying witnesses anything other than reasonable compensation for time, expenses, and expert fees.

But proposed Rule 3.4 also introduces some new concepts from Model Rule 3.4. First, it provides that lawyers may not impede discovery by obstructing access to evidence, altering, destroying or concealing documents or other materials, or having another person engage in such conduct. Second, lawyers may not falsify evidence, counsel or assist a witness to testify falsely, or offer an illegal inducement to a witness. Finally, lawyers may not disobey an obligation under a tribunal’s rules unless they openly do so based on an assertion that no valid obligation exists.

The first two of these terms — along with the currently existing rules they are being incorporated with — share a common theme. They are directed at ensuring that the parties’ dispute is tried on the merits. They do this by making sure that diligent parties and counsel both have the evidence that they have requested in discovery and that untoward conduct of opposing counsel does not cause the integrity of such information to be questioned. The third new portion of the rule safeguards against courtroom procedure from being ignored for frivolous reasons. Each term, including those carried over from the current rules, is directed at ensuring proceedings are conducted in an orderly, civil, and fair manner.

Of note, proposed Rule 3.4 does not incorporate the entirety of the Model Rule. Specifically, it does not include paragraphs (d), (e) or (f). These portions of the Model Rule proscribe making frivolous discovery requests, failing to make reasonably diligent efforts to comply with an opposing party’s discovery requests, alluding at trial to matters that the lawyer believes are irrelevant, and, in most cases, requesting a non-client to refrain from voluntarily providing relevant information to another party. The reason for the exclusion of these terms is based on the conclusion that they are vague and overly broad. Such restrictions could cause some confusion over what advocates are expected to do in fact-sensitive scenarios and result in chilling legitimate advocacy. But, the fact that these are not proposed to be part of the new rule does not mean that the concepts are ones that lawyers should ignore.

Often, a civil approach can facilitate client goals. It is more apt to demonstrate the attorney advocate is reasonable, engender agreement between the parties, and garner the respect of a court or jury. Proposed Rule 3.4 reminds lawyers of some minimal standards for civil conduct. By following the rule, lawyers help to maintain the integrity of proceedings and the profession.

Rule 3.4 Fairness to Opposing Party and Counsel

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence, including a witness, 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) suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce;

(c) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(d) directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case. Except where prohibited by law, 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 loss of time in attending or testifying; or

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

(e) advise or directly or indirectly cause a person* to secrete himself or herself or to leave the jurisdiction of a tribunal* for the purpose of making that person* unavailable as a witness therein;

(f) knowingly* disobey an obligation under the rules of a tribunal* except for an open refusal based on an assertion that no valid obligation exists; or

(g) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the guilt or innocence of an accused.

Comment

[1] Paragraph (a) applies to evidentiary material generally, including computerized information. It is a criminal offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. (See, e.g., Pen. Code, § 135; 18 U.S.C. §§ 1501-1520.) Falsifying evidence is also generally a criminal offense. (See, e.g., Pen. Code, § 132; 18 U.S.C. § 1519.) 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. Applicable law may require a lawyer to turn evidence over to the police or other prosecuting authorities, depending on the circumstances. (See People v. Lee (1970) 3 Cal.App.3d 514, 526 [83 Cal.Rptr. 715]; People v. Meredith (1981) 29 Cal.3d 682 [175 Cal.Rptr. 612].)

[2] A violation of a civil or criminal discovery rule or statute does not by itself establish a violation of this rule.