Fairness to Opposing Party & Counsel
Following is the 76th post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 3 – “Advocate,” focusing on issues concerning attorneys who have been employed or retained by organizations.
This Rule of Professional Conduct, as revised, is as follows:
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 to make 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 subjective opinion as to the guilt or innocence of an accused.
Rule 5-310 of the CBA’s previous RPC – titled “Prohibited Contact with Witnesses” – is the third rule that Rule 3.4 in the current RPC replaces. (The other two were Rules 5-200(E) – “Trial Conduct,” and 5-220 – “Suppression of Evidence.”) This post’s focus is the portion of the new rule pertaining to an attorney’s behavior toward witnesses who are called to testify during a trial. The old rule’s wording is also found in the new rule, as set forth above, although the order in which the old rule’s subdivisions appear has been reversed. Subd. (A) in the old CBA rule is now 3.4(e) and subd. (B) in the old CBA rule is now 3.4(d).
As was mentioned in posts 38 and 40, there are several differences between CBA’s Rule 3.4 and the American Bar Association (ABA)’s Rule 3.4 of their Model RPC. The two subdivisions that DO match are ABA’s 3.4(a) and (b), which correlate to CBA’s 3.4(a) and (c). The warning against suppressing evidence during a trial, found in subd. (b) of CBA’s rule, is missing from ABA’s rule. The subdivisions in ABA’s rule that don’t appear in CBA’s rule are (c) through (f)(2), and include rulings pertaining to an attorney’s behavior both before and during trial.
Benefit: Generally speaking, this rule – as mentioned in posts 38 and 40 – does a good job of emphasizing the type of conduct all attorneys need to follow before and during a trial (specifically, in this case, with witnesses).
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 22 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at 916/996-0400 or at firstname.lastname@example.org. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
Rules of professional conduct, California Bar Association, American Bar Association, legal malpractice, witnesses, opposing counsel, suppression of evidence, Parker Law Group, Port Parker