3.4:200 UNLAWFUL DESTRUCTION AND CONCEALMENT OF EVIDENCE

• Jurisdiction: Arizona

3.4:200 Unlawful Destruction and Concealment of Evidence

ER 3.4(a) prohibits an attorney from unlawfully obstructing another party's access to evidence, or unlawfully altering, destroying, or concealing a document or other material having potential evidentiary value. The Rule also specifically provides that an attorney may not counsel or assist another person to do anything of that nature. As Comment [2] explains:

[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 electronically stored information.

ER 3.4 cmt. [2].

Although it is not expressly stated in ER 3.4, Arizona courts have interpreted ER 3.4(a) to include a requirement that an attorney "know" that another party's access to evidence is being improperly obstructed by the attorney's actions. In In re Shannon, 179 Ariz. 52, 876 P.2d 548, modified, 181 Ariz. 307, 890 P.2d 602 (1994), the respondent lawyer had changed draft interrogatory answers that his client had approved, and then submitted them to opposing counsel, with a verification signed by his clients, without advising the clients that he had made changes. Although the court agreed that respondent's use of these interrogatory answers in resisting a motion for summary judgment, after he had been advised that his clients did not agree with them, violated ER 3.3, the submission of them to opposing counsel did not constitute a violation of either ER 3.4 or ER 4.1, because at the time respondent did so, he did not know that his clients did not agree with the changes he had made. Id. at 64, 876 P.2d at 560. As the court observed: "All of the ethical rules in question—3.3, 3.4(a), 3.4(b) and 4.1—expressly or impliedly require some sort of knowledge on the part of the attorney." Id.

In civil cases, Arizona is a "mandatory disclosure" state, and attorneys engaged in litigation are required to comply with the Arizona Rules of Civil Procedure. Rule 26.1, Arizona Rules of Civil Procedure, sets forth nine separate categories of information that must be disclosed without a specific request, and mandates that in all civil cases, "parties shall make the initial disclosure . . . within forty (40) days after the filing of a responsive pleading to the Complaint . . . unless the parties otherwise agree, or the court shortens or extends the time for good cause." Ariz. R. Civ. P. 26.1. A lawyer shall not unlawfully obstruct another party's access to evidence within this required time frame. See Samaritan Found. v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (1993) (noting that the client and the lawyer have and continue to have obligations to respond truthfully to discovery requests seeking facts within their knowledge, and, if the client refuses to disclose facts communicated to the lawyer in confidence, at a minimum, the lawyer must withdraw).

Roughly similar requirements pertain in criminal cases. ER 3.8(d) imposes on prosecutors an ethical obligation to "make timely disclosure to the defense...