Rule 3.4 Fairness to Opposing Party and Counsel

• Library: Annotated South Carolina Rules of Professional Conduct (SCBAR) (2021 Ed.)

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 a 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. 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 purposes 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. A lawyer may 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 or in any other manner alter or destroy the value of the evidence for possible use by the prosecution. 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.

MODEL RULE COMPARISON

South Carolina Rule 3.4 is identical to ABA Model Rule 3.4, but the comments differ from the Model Rule. For the comments to Model Rule 3.4 put the following into your browser: ABA Center for Professional Responsibility > Publications > Model Rules of Professional Conduct.

CROSS-REFERENCES ■ For defamation privilege, see Rule 1.1, Annotation; ■ For application in nonadjudicative proceedings, see Rule 3.9; ■ For duty to respect rights of third persons generally, see Rule 4.4; ■ For threats of criminal prosecution to gain advantage, see Rule 4.5; ■ For deposition conduct, see SCRCP 30(j)

ANNOTATIONS

Fair competition in an adversarial system requires certain ground rules to prevent abusive tactics that might unfairly alter the ability of the parties to obtain information relevant to a particular matter. Rule 3.4, cmt. 1. Rule 3.4 elevates certain discovery abuses to matters of ethical misconduct, meaning that a lawyer may be disciplined for such abuses in addition to any civil sanction that might be imposed by the trial court. A supervisory lawyer may also be subject to liability under Rule 5.1 for failure to supervise adequately a junior lawyer's deposition conduct. See In re Anonymous Member of the South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10 (2001).

» Unlawful Destruction and Concealment of Evidence

A lawyer may not unlawfully destroy, alter, or conceal any material of potential evidentiary value, or counsel or assist another in doing so. Nor may a lawyer unlawfully obstruct access to evidence. Rule 3.4(a). See In re Barrow, 278 S.C. 276, 294 S.E.2d 785 (1982) (lawyer knew that relevant evidence had been materially altered, but failed to reveal that fact and failed to disclose photos of the evidence that might have revealed the alteration).

Defense counsel in criminal cases on occasion face the issue of whether they may ethically take possession of possible physical evidence of a client's crime for the purpose of testing the evidence to determine whether the evidence is exculpatory. Rule 3.4, cmt. 2 authorizes but does not require lawyers to take possession of such evidence for...