Following is the 40th 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 suppression of evidence. The 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 for the purpose of making 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 personal opinion as to the guilt or innocence of an accused.
This revised rule, which was also the subject of post 38, refers to a different revision in this post. Instead of describing provisions related to “Trial Conduct” – as post 38 did, this post (as set forth above) compares Rule 3.4 of the CBA’s new RPC to Rule 5-220 of the previous RPC … addressing the issue of suppression of evidence.
Rule 5-220 was actually revised about a year before the CBA came out with their new RPC in May 2018. Effective May 1, 2017, the previous Rule 5-220 saw one minor change to its wording: deletion of the word “any” between “suppress” and “evidence.” Interestingly, the word “any” was added back to the CBA’s newest version of the rule. The portion of this rule that refers to “suppression of evidence” in the new rule can be found in subdivision (b) of the newly revised rule.
The differences between Rule 3.4 of the American Bar Association (ABA)’s RPC and the corresponding rule in CBA’s new RPC can be found in post 38 (“Fairness to Opposing Party – Trial Conduct”). The portion of the ABA rule most closely resembling the verbiage about suppression of evidence in CBA’s rule is subdivision (a), which says a lawyer shall not “unlawfully obstruct another party’ s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” No reference is made, however, to the word “suppression.”
Benefit: Generally speaking, an attorney who fully understands the restrictions placed on them during a trial (in this case, their possible role as a witness) will be better equipped to adequately represent their clients.
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