Following is the 38th 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 the expectations for a lawyer’s conduct to be ethical and fair during a legal proceeding. 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.
Rule 3.4 of the CBA’s new RPC, as set forth above, has been greatly expanded from the corresponding rule in the previous RPC. Rule 5-200(E) – a one-sentence subdivision under the topic of “Trial Conduct,” stated that an attorney “Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.” This language now appears in the final subdivision (g) of the new rule, although a phrase has been added, warning against an attorney giving an opinion on the guilt or innocence of a defendant.
In the new RPC, Rule 3.4 contains seven subdivisions and three sub-subdivisions, all of which relate to mishandling of evidence, including obstruction, suppression, falsification, and monetary compensation. One subdivision even warns against causing a person to make him- or herself unavailable as a witness.
The American Bar Association (ABA) RPC’s Rule 3.4 differs in several ways from the CBA’s new Rule 3.4. Only six subdivisions are found in ABA’s rule, one of which doesn’t appear in CBA’s rule at all. Subdivision (d) states that a lawyer shall not “… in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party… .” And subdivision (f) of ABA’s rule has a slight similarity to subdivision (e) of CBA’s rule in that it relates to tampering with a witness. ABA’s rule says a lawyer shall not “… 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.”
Benefit: Generally speaking, the expansion of this rule, relating to a lawyer’s dealings with evidence and potential witnesses, should serve as a stronger barrier against possible charges being brought against the lawyer in future proceedings … which, in turn, will benefit all clients being represented by that lawyer.
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.)
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