72 J. Kan. Bar Assn. 1, 33-43 (2003). Handling Documents and Witnesses: Ethics, Crimes and Other Assorted Difficulties.

AuthorBy Mark Hinderks

Kansas Bar Journals

Volume 72.

72 J. Kan. Bar Assn. 1, 33-43 (2003).

Handling Documents and Witnesses: Ethics, Crimes and Other Assorted Difficulties

Kansas Bar Journal72 J. Kan. Bar Assn. 1, 33-43 (2003)Handling Documents and Witnesses: Ethics, Crimes and Other Assorted DifficultiesBy Mark HinderksI. Introduction

Lawyers present cases with documents and witnesses. The obtaining, marshalling, defense and characterization of documentary and testimonial evidence of clients, opponents and third-party sources is a key activity of lawyers in adjudicative proceedings.

"The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the . . . laws."[1]

This understatement by the United States Supreme Court about identifying and understanding ever-changing, ever-multiplying legal authority applies with only slightly diminished force to the average lawyer. It certainly applies to the area of what lawyers do with documents and witnesses. The ethical and procedural rules and substantive law tend to be general rather than specific, and emanate from a number of federal and state legislative and judicial sources, making them in many cases difficult to find and consistently apply.

This article will discuss and synthesize (as to at least a few common questions) the law and rules governing attorney conduct concerning documents and witnesses. It will address duties and limitations inherent in the Model Rules of Professional Conduct, common law principles concerning spoliation of evidence, statutory law on obstruction of justice, and discovery sanctions that may apply. The focus will be pragmatic, directed more to practical guidance than a complete scholarly survey.[2] It will divide the discussion into two segments: a general summary of various applicable authorities, followed by application of these authorities to particular situations lawyers may face.

  1. The Legal Framework: Rules and Applicable Law

    1. Fairness and candor in litigation . . . the model rules

      The Model Rules of Professional Conduct ("Model Rules" or "MRPC")[3] attempt to balance the tension between duties to client (competence, diligence, confidentiality) and external duties to opponents (truthfulness, fairness), the tribunal (candor) and third parties (truthfulness, respect for rights). On the one hand, clients engage lawyers to vigorously and aggressively ("zealously" in the familiar language of the Code of Professional Responsibility that preceded the Model Rules) represent their interests, and expect lawyers to be advocates with whom they can consult in unfearing confidence. On the other hand, the system needs basic litigation rules of engagement to maintain the integrity of the process and therefore limits what lawyers may do for clients (and their own career advancement).[4]

      Relevant duties to clients are set forth in MRPC 1.1, 1.3 and 1.6(a). MRPC 1.1 requires the lawyer to render "competent representation," which encompasses legal knowledge, skill, thoroughness and preparation reasonably necessary. MRPC 1.3 requires an attorney to act with reasonable diligence in the representation. MRPC 1.6(a) generally prohibits a lawyer from revealing information relating to the representation, without client consultation and consent. These are the straightforward services for which clients engage us. However, limitations on the rendering of these client services are numerous and appear throughout the Model Rules, in MRPC 1.2, 1.6(b), 1.13, 1.16, 3.3, 3.4, 4.1, 4.3, 4.4 and 8.4.

      1. General model rule limitations on involvement in crime, fraud or other model rule violations.

        MRPC 1.2(d) prohibits a lawyer from counseling or assisting a client to engage in criminal or fraudulent conduct. MRPC 1.2(e) requires a lawyer to consult with the client about limitations on the lawyer's conduct, if the lawyer knows that the client expects the lawyer to assist in illegal conduct or conduct that would violate the Model Rules. The Comment to MRPC 1.2 makes it clear that the lawyer's role is to advise the client about the consequences of client conduct that may or has crossed the line, and not to further any wrongdoing already begun. If the client engages or intends to engage in such conduct, the lawyer may be obligated to withdraw. Disclosure in such instance is governed by MRPC 1.6.[5]

        Similarly, MRPC 1.13, applicable to representation of organizational clients, requires the lawyer to act when the lawyer knows that a constituent of the organization is or intends to act or refuse to act in a manner related to the representation that would violate the law or a legal duty to the organization, and would likely cause substantial injury to the organization.[6] In such case, the lawyer must pursue the matter up the ladder of authority in the organization, and "if warranted by the seriousness of the matter,"[7] to the organization's highest decision-maker. In the case of a corporation, this ordinarily would be the board of directors.[8] If that highest authority insists on conduct that is "clearly a violation of law and is likely to result in substantial injury to the organization," the lawyer must follow MRPC 1.16.[9]

        MRPC 1.16 also prohibits a lawyer from representing or continuing to represent a client if it would result in a violation of the Model Rules or other law, or if "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent." In such event, the lawyer must withdraw. MRPC 4.1 prohibits a lawyer from making any knowingly false statements of material fact or law to a third person, and from knowingly failing to disclose a material fact to a third person when necessary to prevent a client's crime or fraud, unless the disclosure would be prohibited or made discretionary by MRPC 1.6.[10] Finally, MRPC 8.4 also includes within its laundry list of "professional misconduct" violations or attempted violations of the Model Rules, criminal acts that reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, conduct that involves dishonesty, fraud, deceit or misrepresentation, and conduct prejudicial to the administration of justice. These interlocking rules thus make it clear that even if any conduct involving documents or witnesses does not otherwise violate the Model Rules, if the lawyer's involvement would further a crime, dishonesty, fraud or misrepresentation, or conduct prejudicial to the administration of justice, that conduct violates the Model Rules.

      2. Specific model rule provisions concerning documents and witnesses.

        MRPC 3.3, concerning the duty of candor to the tribunal, sets forth rules designed to prevent or remediate presentation of false evidence to a tribunal or a client crime or fraud involving a tribunal. The rule's reference to false evidence encompasses both false witness testimony and false documentary evidence. "Tribunal" is not defined, but is generally understood to encompass any "adjudicative proceeding" involving witnesses or evidence.[11] MRPC 3.3(a)(4) precludes the lawyer from offering evidence the lawyer knows to be false, and MRPC 3.3(c) permits the lawyer to refuse to offer evidence the lawyer reasonably believes is false. If the lawyer comes to know during a proceeding that evidence already offered was false, the lawyer is required to take "reasonable remedial measures."[12] If the false evidence involves client testimony, the lawyer's remedial measures must ordinarily first remonstrate with the client and try to convince the client not to offer the false testimony, or to correct the false testimony if already given.[13] MRPC 3.3(a)(2) also requires the lawyer not to knowingly fail to disclose a material fact to a tribunal when necessary to avoid assisting a criminal or fraudulent act by the client.[14]

        MRPC 3.4 contains the central Model Rules provisions relevant to documents and witnesses prior to trial (unlike MRPC 3.3 it is not limited to matters offered to a tribunal), and also overlaps with MRPC 3.3 concerning trial conduct, although it does not contain the "remedial measures" concept of MRPC 3.3.[15] It prohibits unlawfully[16] obstructing another party's access to evidence, unlawfully altering, destroying and concealing documents "or other material having potential evidentiary value," falsifying evidence, counseling or assisting a witness to testify falsely, offering an illegal inducement to a witness, disobeying obligations of rules (including those governing discovery) except where openly contesting them, and failing to make "reasonably diligent" efforts to comply with discovery requests.

        MRPC 3.4(f) also prohibits a lawyer from asking a third party witness not to provide information to another party, except under limited circumstances concerning relatives, and employees and agents of a client. MRPC 3.3 and 3.4 further require lawyers to refrain from using means and methods of obtaining evidence solely to embarrass, burden or delay third persons, or that violate their legal rights. In the case of unrepresented third parties, the lawyer must clarify his or her legal rights to avoid misunderstanding or implication that the lawyer is a disinterested legal authority.

        Finally, the Kansas version of MRPC 1.6(b) states that a lawyer "may" even reveal client confidences if the lawyer reasonably believes it is necessary to prevent a crime...

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