CHAPTER 2 - 2-4 ACCESS TO EVIDENCE AND FAIRNESS TO PARTIES AND COUNSEL

• Jurisdiction: United States

2-4 Access to Evidence and Fairness to Parties and Counsel

2-4:1 Obstructing Access to Evidence

A lawyer may not unlawfully obstruct another person's access to evidence or alter, destroy of conceal a document or other evidence.⁷⁸ This conduct is not only prohibited by ethics rules but also by state⁷⁹ and federal⁸⁰ statutes. In one matter, a lawyer was suspended for a year after he was arrested for destroying his client's laptop computer which contained child pornography, conduct apparently designed to prevent its discovery.⁸¹

In Briggs v. McWeeny a judge disqualified a lawyer from further participation in a hotly contested matter when she attempted to suppress an engineering report. On writ of error, the disqualification for violation of Rule 3.4(1) was upheld.⁸² In Faile v. Zarich a judge entered an interlocutory order and imposed monetary sanctions where a lawyer exhibited a practice and pattern of speaking objections and coaching witnesses during depositions.⁸³

A lawyer may not counsel another to destroy evidence.⁸⁴ This prohibition, as with witness and evidence tampering, is also found in the criminal law and can create serious problems for lawyers who counsel clients regarding such matters. For instance, a client who brings drugs or other contraband found in a child's room to a lawyer for advice may be required to advise the client to return them to where they were found to avoid exposing both the lawyer and the client to evidence tampering charges. Physical items such as a gun or an incriminating business file may become evidence under the tampering statute if used in the commission of a crime or if there is an official investigation proceeding involving its subject or use. Sometimes, a lawyer may take possession of and surrender evidence or contraband to law enforcement authorities in an anonymous fashion, but this requires care and is not without risk. On occasion, lawyers have given such materials to another lawyer to surrender to avoid them being traced back to the client. Simply taking possession of such materials and placing them in the lawyer's safe will not prevent them from being seized and used against the client.

A lawyer may not falsify evidence, counsel or assist a witness to testify falsely or offer an inducement to a witness prohibited by law.⁸⁵ A lawyer may not request that a person, other than a client, refrain from giving evidence unless the person is a relative, employee⁸⁶ or agent of the client and the lawyer reasonably believes that doing so will not adversely affect the person's interests.⁸⁷

2-4:2 Threatening Criminal Prosecution

A lawyer may not present, participate in presenting or threaten criminal charges solely to obtain advantage in a civil matter.⁸⁸ Threatening a...