Advocates Must Heed Rules on Evidence Tampering, Dealings With Witnesses

American Bar Association Model Rule 3.4(a), under the umbrella title “Fairness to Opposing Party and Counsel,” broadly forbids tampering with evidence. Lawyers must not “unlawfully obstruct a party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value,” or counsel or assist anyone to do so. These prohibitions, like the other aspects of Rule 3.4, are intended to secure fair competition in the adversary process. Rule 3.4 cmt. [1].

Similarly, Section 118(2) of the Restatement (Third) of the Law Governing Lawyers (2000) states that a lawyer may not “destroy or obstruct another party’s access to documentary or other evidence when doing so would violate a court order or other legal requirements, or counsel or assist a client to do so.”

Notably, the prohibitions in Rule 3.4(a) apply not just to lawyers who are serving in a professional capacity as a client advocate but also to those who tamper with evidence in a personal capacity. In re Melvin, 807 A.2d 550, 18 Law. Man. Prof. Conduct 671 (Del. 2002) (applying Rule 3.4(a) to lawyer who concealed or destroyed his estranged wife’s journal, which might have aided in lodging a criminal charge against him); Maryland Attorney Grievance Comm’n v. White, 731 A.2d 447, 15 Law. Man. Prof. Conduct 319 (Md. 1999) (lawyer disciplined under Rule 3.4(a) for destroying autobiographical manuscript that described events bearing on her claims as plaintiff in civil action); Disciplinary Counsel v. Robinson, 933 N.E.2d 1095, 26 Law. Man. Prof. Conduct 539 (Ohio 2010) (lawyer’s destruction of documents that had potential evidentiary value in dispute with his former firm violated Rule 3.4(a)).

‘Unlawfully.’

The word “unlawfully” in Model Rule 3.4(a) piggybacks on law external to the rule without specifically identifying the sources on which the meaning of the rule depends.

At the very least, “unlawful” refers to conduct that constitutes a crime. Comment [2] states: “Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen.”

Therefore, when evaluating whether certain conduct in regard to evidence would be “unlawful” and thus contrary to Rule 3.4(a), a lawyer must first understand the governing criminal law, including the elements of obstruction of justice and criminal contempt. For an excellent summary of this body of law, see J. Gorelick, S. Marzen & L. Solum, Destruction of Evidence ch. 5 (1989 & Supp. 2010). See also Mermelstein & Decker, Walk the Line, 29 Los Angeles Law. 27 (2006) (discussing application of federal obstruction statutes to attorneys).

The primary federal obstruction of justice statute, 18 U.S.C. §1503, which makes it a crime to corruptly obstruct the due administration of justice, has been uniformly construed to encompass the intentional destruction of evidence relevant to pending judicial proceedings for the purpose of obstructing justice. E.g., United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991). Other federal statutes that bear on document destruction, alteration, or concealment include:

• 18 U.S.C. §401, which provides for punishment of those who disobey court orders and process, including subpoenas;
• 18 U.S.C. §1512(b), which authorizes prosecution of anyone who corruptly persuades another person to destroy, alter, or conceal documents to make them unavailable in an official proceeding;
• 18 U.S.C. §1512(c), which makes it a crime to corruptly alter, destroy, mutilate, or conceal a document with the intent to make it unavailable in an official proceeding, or otherwise obstruct any official proceeding; and
• 18 U.S.C. §1519, which makes it a crime to alter, destroy, mutilate, conceal, falsify, or make a false entry in any document with the intent to obstruct a federal investigation or bankruptcy case, “or in relation to or contemplation of any such matter or case.”

On the state level, criminal laws vary widely. A large majority of states have statutes that prohibit destruction or concealment of evidence. Some state statutes follow Section 241.7 of the Model Penal Code (1980), which states: “A person commits a misdemeanor if, believing that an official proceeding or investigation is pending or about to be instituted, he (1) alters, destroys, conceals, or removes any record, document, or thing with purpose to impair its verity or availability in such proceeding or investigation.”

Rule 3.4(a) does not merely forbid criminal evidence tampering. The term “unlawfully” in the rule has been construed to cover not only criminal acts but also noncriminal conduct that violates discovery law or tort law, such as fraud. See, e.g., Lawyer Disciplinary Bd. v. Smoot, No. 34724, 2010 W. Va. LEXIS 134, 26 Law. Man. Prof. Conduct 727 (W. Va. Nov. 17, 2010) (by removing narrative portion of medical report in federal black lung case before giving it to client’s opponent, lawyer “unlawfully” altered evidence in violation of Rule 3.4(a) even though no federal regulation required report to be disclosed). The Restatement’s rule on evidence tampering likewise goes beyond the criminal law, in that it forbids lawyers to destroy or obstruct another party’s access to evidence when doing so would violate a court order or “other legal requirements.” Restatement (Third) of the Law Governing Lawyers §118(2) (2000).

Prosecutors have constitutionally based obligations not to destroy material evidence and to produce important information helpful to the defense. Violations of these duties can subject a prosecutor to professional discipline. E.g., Iowa State Bar Ass’n Comm. on Prof’l Ethics & Conduct v. Ramey, 512 N.W.2d 569 (Iowa 1994); see also “Prosecutor in Duke Lacrosse Case Is Disbarred for Intentional Misconduct,” 23 Law. Man. Prof. Conduct 330.

Defense lawyers complain, however, that prosecutors too rarely are disciplined for suppression of exculpatory evidence or other misconduct. See “Critical Report Spurs California Bar to Probe Whether Prosecutorial Misconduct Is Ignored,” 26 Law. Man. Prof. Conduct 651.

Preserving and Destroying Evidence.

Model Rule 3.4(a) forbids lawyers to facilitate a client’s destruction of materials that have potential evidentiary value. This prohibition obviously covers documents subject to discovery in pending litigation. See Michigan Informal Ethics Op. RI-345 (2008) (to avoid assisting destruction of evidence, corporation’s lawyer must refuse to hand over documents to company’s chief executive officer if lawyer knows that documents are subject to discovery order and that CEO intends to destroy them).

On the other hand, as the Restatement notes in Comment c to Section 118, it would be intolerable to require that every scrap of paper be saved against the possibility that someone, somewhere, might want to review it. Therefore, the comment advises, “it is presumptively lawful to act pursuant to an established document retention-destruction program that conforms to existing law and is consistently followed, absent a supervening obligation such as a subpoena or other lawful demand for or order relating to the material.”

But once litigation is reasonably foreseeable, destruction of relevant documents may be considered spoliation, even if no lawsuit has actually been filed. J. Gorelick, S. Marzen & L. Solum, Destruction of Evidence §3.12 (1989 & Supp. 2010); Kinsler & MacIver, Demystifying Spoliation of Evidence, 34 Tort & Ins. L.J. 761, 763 (1999); see also Micron Tech. Inc. v. Rambus Inc., 255 F.R.D. 135 (D. Del. 2009) (as soon as there is reasonable belief that litigation is foreseeable and potential claim is identified, party is under duty to preserve evidence that it knows or reasonably should know is relevant to future litigation).

In addition, a client should not be advised to adopt a document “retention” policy that could result in the destruction of evidence relevant to a looming investigation, and even a reminder to a client to observe an existing document destruction policy at such a time may be seen as improper. See “Lawyers Debate Best Way to Advise Clients on Editing, Shredding Records Post-Andersen,” 18 Law. Man. Prof. Conduct 484.

Before advising a client about document retention and destruction, lawyers need to research applicable caselaw and statutes—and exercise a high degree of caution. No one-size-fits-all rule can capture, in all situations, what advice about destruction of records is improper. As the Restatement puts it in Comment c to Section 118: “No general statement can accurately describe the legality of record destruction; statutes and decisions must be consulted.” The legality of the conduct may turn on such factual questions as the state of mind of the client or the lawyer, the comment adds. See generally Crystal, Ethical Responsibility and Legal Liability of Lawyers for Failure to Institute or Monitor Litigation Holds, 43 Akron L. Rev. 715 (2010); Allman, Managing Preservation Obligations After the 2006 Federal E-Discovery Amendments, 13 Rich. J. L. & Tech. 9 (2007).

Altering Evidence.

Many lawyers get in trouble under Model Rule 3.4(a) for altering a document, typically to delete something that would be harmful to the client or to add something important that is missing. For example, numerous lawyers have been disciplined under Rule 3.4(a) for altering a personal injury client’s medical records. E.g., In re Zeiger, 692 A.2d 1351 (D.C. 1997); Kentucky Bar Ass’n v. Yocum, 294 S.W.3d 437, 25 Law. Man. Prof. Conduct 599 (Ky. 2009).

Removing part of a document before producing it to a litigation opponent may be viewed as “altering” that evidence under Rule 3.4(a). E.g., Smoot; District of Columbia Ethics Op. 341 (2007) (suggesting that, in at least some instances, removal of “metadata” from documents before producing them in discovery may constitute alteration that contravenes Rule 3.4(a)).

An alteration of a document that violates Model Rule 3.4(a) may also run afoul of Rule 3.4(b)'s prohibition against falsification of evidence and/or Rule 8.4’s prohibition against misconduct. See, e.g., In re Watkins, 656 So. 2d 984 (La. 1995) (lawyer who altered physician reports regarding Social Security claimant violated not only Rules 3.4(a) and (b) but also 8.4(b), (c), and (d)); Smoot (removing key part of medical report before providing report to opponent violated Rules 3.4(a) and 8.4(c) and (d)).

Whether or not a violation of Rule 3.4(a) is ultimately found, removing part of a document may be viewed as misleading and sanctionable under other rules. E.g., In re Aitken, 787 N.W.2d 152, 26 Law. Man. Prof. Conduct 538 (Minn. 2010) (forging client’s signature did not “alter” document, but did involve dishonesty and false statement); see also In re Wilka, 638 N.W.2d 245, 18 Law. Man. Prof. Conduct 66 (S.D. 2001) (lawyer violated Rule 3.3 by offering into evidence client’s drug screening report that lawyer knew had been truncated to omit unfavorable results).

Concealing or Obstructing Access.

Model Rule 3.4(a) forbids a lawyer to unlawfully obstruct a party’s access to evidence or unlawfully conceal material that has potential value as evidence. See, e.g., Briggs v. McWeeny, 796 A.2d 516, 18 Law. Man. Prof. Conduct 332 (Conn. 2002) (lawyer’s effort to keep damaging report from opponent violated Rule 3.4(a) even though her misconduct did not prejudice opponent); In re Stover, 104 P.3d 394, 21 Law. Man. Prof. Conduct 62 (Kan. 2005) (lawyer violated Rule 3.4(a) by refusing to give former clients access to computer that she used to maintain unauthorized website in their names); In re Carey, 89 S.W.3d 477, 18 Law. Man. Prof. Conduct 744 (Mo. 2002) (lawyers violated Rule 3.4(a) by submitting discovery responses denying existence of certain documents and conversations); In re Forrest, 730 A.2d 340, 15 Law. Man. Prof. Conduct 320 (N.J. 1999) (lawyer violated Rule 3.4(a) by hiding fact that personal injury client had died while his claim was being litigated).

This aspect of Rule 3.4(a) can be troublesome, however, because the American legal tradition views litigants as having no general duty to reveal damaging evidence or information to the other side. See In re Enstar Corp., 593 A.2d 543 (Del. Ch. Ct. 1991), rev’d on other grounds, 604 A.2d 404 (Del. 1992) (attorney’s duty of fairness to opposing party does not mean that attorney must affirmatively reveal weakness of his case to his opponent); see also Maryland Ethics Op. 92-16 (1992) (lawyer for criminal defendant not obligated to turn over inculpatory documents inadvertently given to client by rookie police officer); New York County Ethics Op. 698 (lawyer representing claimant in Social Security hearing need not disclose adverse medical information if no request is made for it, administrative rules don’t require disclosure, and information doesn’t provide lawyer with knowledge that client’s claim is false); Philadelphia Ethics Op. 93-6 (1993) (lawyer for injured motorists not required to inform defendants’ insurers that clients’ medical bills were fraudulently inflated, without clients’ knowledge, by medical providers who submitted them to clients’ no-fault insurers); Rhode Island Ethics Op. 95-19 (1995) (lawyer who is aware that opposing party intends to enter judgment against client need not volunteer information that client changed address).

Rule 3.4(a) does not itself create a duty of disclosure. Sherman v. State, 905 P.2d 355 (Wash. 1995). But as discussed above, a lawyer’s concealment, withholding, or obstruction of access to evidence violates Rule 3.4(a) if the lawyer’s conduct is “unlawful,” which refers not only to criminal conduct but also to conduct that violates noncriminal legal obligations to produce the evidence, as in civil discovery. 1 G. Hazard, W. Hodes & P. Jarvis, The Law of Lawyering §30.4 at 30-6 (3d ed. Supp. 2004-2).

Accordingly, concealing or obstructing access to information that must be disclosed under discovery rules has been held to violate Rule 3.4(a). E.g., Florida Bar v. Burkich-Burrell, 659 So. 2d 1082 (Fla. 1995); In re Dwight, 834 P.2d 382 (Kan. 1992); Mississippi Bar v. Mathis, 620 So. 2d 1213 (Miss. 1993); In re Herkenhoff, 866 P.2d 350 (N.M. 1993).

A lawyer who interprets discovery requests narrowly to avoid revealing damaging information runs the risk of violating Rule 3.4(a), especially when the lawyer intends to create misimpressions in the mind of opposing counsel. E.g., Mississippi Bar v. Land, 653 So. 2d 899 (Miss. 1994) (lawyer violated Rule 3.4(a) by intentionally framing discovery responses to conceal damaging evidence that would have provided opposing party with new theory of liability).

Physical Evidence of Client Crime.

What should a lawyer do who comes into possession of physical evidence of a crime, such as the gun used in a shooting or money stolen from a bank?

The Restatement provides a suggested course of action. The lawyer “may, when reasonably necessary for purposes of the representation, take possession of the evidence and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy material characteristics of the evidence.” Then, the lawyer must “notify prosecuting authorities of the lawyer’s possession of the evidence or turn the evidence over to them.” Restatement (Third) of the Law Governing Lawyers §§119(1), (2) (2000).

Various criminal laws circumscribe the lawyer’s conduct in this situation, including statutes that criminalize the concealment or destruction of evidence and statutes that criminalize possession of contraband or fruits and instrumentalities of crime.

Some question exists whether courts will uphold criminal sanctions against defense lawyers whose conduct violates such laws. See, e.g., Clark v. State, 261 S.W.2d 339 (Tex. Crim. App. 1953) (Texas concealment statute implicitly excludes defense lawyers); People v. Belge, 376 N.Y.S.2d 771 (N.Y. App. Div. 1975), aff’d, 359 N.E.2d 377 (N.Y. 1976) (dismissal of criminal charges against lawyer whose client told him about location of dead bodies and who went there and photographed them but delayed revealing that information for many months); Commonwealth v. Stenhach, 514 A.2d 114 (Pa. Super. Ct. 1986) (Pennsylvania statutes that prohibit hindering prosecution and tampering with physical evidence are unconstitutionally overbroad when applied to attorneys representing criminal defendants).

But these criminal laws nevertheless shape the professional obligation of a lawyer who comes into possession of physical evidence. See Model Rule 3.4(a) (lawyer may not “unlawfully” conceal or obstruct access to evidence). Hence, as an ethical matter a lawyer may not take possession of fruits or instrumentalities of a crime and do nothing. In re Ryder, 263 F. Supp. 360 (E.D. Va. 1967), aff’d, 381 F.2d 713 (4th Cir. 1967); see also West Virginia Ethics Op. 98-02 (1998) (criminal defense lawyers who come into possession of fruits or instrumentalities of crime may not use ethics rules or attorney-client privilege to shield potential evidence from law enforcement officials, and should consider in advance how to deal with this situation).

Instead, according to most caselaw, lawyers must hand physical evidence of a crime over to the proper authorities. Morrell v. State, 575 P.2d 1200 (Alaska 1978); Hitch v. Pima County Superior Court, 708 P.2d 72 (Ariz. 1985); People v. Lee, 83 Cal. Rptr. 715 (Cal. Ct. App. 1970); Stenhach; State ex rel. Sowers v. Olwell, 394 P.2d 681 (Wash. 1964).

Ethics committees likewise generally advise counsel to turn over physical evidence of a crime. E.g., Maryland Ethics Op. 90-24 (1990); Nevada Ethics Op. 10 (1988); Pennsylvania Ethics Op. 95-1 (1995); Virginia Ethics Op. 953 (1987); see also Oregon Ethics Op. 2005-105 (2005) (lawyer who takes possession of murder weapon from client charged with murder must make weapon available to prosecutor, but should do so anonymously or through intermediary to avoid implicating the client).

Most authority permits the lawyer in possession of physical evidence of a crime to spend a reasonable amount of time examining the evidence before turning it over. E.g., Stenhach. Some authority views it as proper for the lawyer to have the evidence tested. E.g., State ex rel. Sowers v. Olwell; North Carolina Ethics Op. 221 (1995). On the other hand, the lawyer must not tamper with or alter the evidence, so the safer route is to make a motion that the defense be allowed to have tests performed on the evidence. Pennsylvania Ethics Op. 95-1 (1995).

Comment [2] to Model Rule 3.4, which the ABA amended in 2002, reminds lawyers to be alert to the law governing possession of physical evidence of client crimes. Applicable law may permit a lawyer to take temporary possession of the evidence to conduct a limited examination that will not alter or destroy its material characteristics, the comment notes. It also points out that applicable law may require the lawyer to turn over the evidence to the police or the prosecutor’s office, depending on the circumstances.

Some authority indicates that in some circumstances a lawyer may return physical evidence of a crime to its source. E.g., Stenhach; North Carolina Ethics Op. 221 (1995) (unless evidence is contraband or there is court order or law requiring its delivery to authorities, lawyer must return it to source, advising the source of legal consequences of possession or destruction of evidence).

Regarding the idea of returning the physical evidence to the site, the Restatement notes in Comment c to Section 119 that this course will often be impossible. At a minimum, the comment says, this option likely will be unavailable because the attorney usually will know that the client or another person would destroy the evidence if it is simply returned.

A California appellate court declared that if defense counsel receives, possesses, alters, or moves physical evidence pertaining to a crime for which the client has been charged, the lawyer should tell the court. People v. Superior Court, 237 Cal. Rptr. 158 (Cal. Ct. App. 1987).

A lawyer generally cannot reveal or be forced to reveal privileged communications that surrounded the lawyer’s possession of the physical evidence or contraband. People v. Superior Court (while physical evidence which lawyer retrieved using information provided by client—and location from which lawyer retrieved it—was not protected by attorney-client privilege, fact that item was discovered by defense only after discussion with client was protected); State v. Green, 493 So. 2d 1178 (La. 1986) (weapon itself not protected but source was); Nevada Ethics Op. 10 (1988). But see Commonwealth v. Ferri, 599 A.2d 208 (Pa. Super. Ct. 1991) (applying balancing test and holding that criminal defense lawyers whose former client turned over to them clothing he had worn on night of crime could not rely on attorney-client privilege to avoid providing chain-of-custody testimony that was needed to make clothing admissible at former client’s trial).

Falsifying Evidence.

As another aspect of the duty of fairness owed to the opposing party and counsel, Model Rule 3.4(b) prohibits a lawyer from falsifying evidence. Accord Restatement (Third) of the Law Governing Lawyers §118(1) (2000) (lawyer “may not falsify documentary or other evidence”).

Many different acts have led to professional discipline for falsifying evidence. Examples include:

▸Testifying falsely in a dispute with an ex-client. In re Stover, 104 P.3d 394, 21 Law. Man. Prof. Conduct 62 (Kan. 2005).

▸Manufacturing documents. E.g., In re Manning-Wallace, 695 S.E.2d 257 (Ga. 2010); In re Poole, 125 P.3d 954, 22 Law. Man. Prof. Conduct 59 (Wash. 2006).

▸Including false statements in affidavits, certifications, or testimony. E.g., In re Mickerson, 662 N.E.2d 1027 (Mass. 1996).

▸Signing the client’s name on a document without indicating that the lawyer signed it for the client. E.g., Am. Airlines Inc. v. Allied Pilots Ass’n, 968 F.2d 523 (5th Cir. 1992).

▸Falsely notarizing a document. E.g., In re Elowitz, 866 P.2d 1326 (Ariz. 1994).

▸Backdating a document. E.g., Iowa State Bar Ass’n Comm. on Prof’l Ethics & Conduct v. Bauerle, 460 N.W.2d 452 (Iowa 1990).

▸Creating a backdated document. E.g., In re Poole.

▸Altering a document, such as deleting, adding, or changing language or substituting pages. E.g., In re Rosenzweig, 838 P.2d 1272 (Ariz. 1992); In re Watkins, 656 So. 2d 984 (La. 1995).

▸Staging a fake automobile accident in order to collect money. E.g., In re Caulfield, 683 So. 2d 714 (La. 1996).

Rule 3.4(b) applies not only when lawyers are acting as an advocate for a client, but also when lawyers falsify evidence while handling their own legal problems. In re Poole (lawyer disciplined for fabricating document in fee dispute with ex-client).

Frequently, the lawyer’s conduct violates not only the prohibition against falsifying evidence but also some other part of Rule 3.4. E.g., In re Rosenzweig (lawyer violated Rule 3.4(a) and (b) when he added language to installment note after it was signed).

The duty not to falsify evidence also implicates a lawyer’s obligations to the tribunal under Rule 3.3, and lawyers who falsify evidence are often disciplined for violating both rules as well as Rule 8.4’s more general prohibition against misconduct. E.g., In re Oberhellmann, 873 S.W.2d 851 (Mo. 1994).

Counseling Falsehoods.

As part of the broader prohibition against creating or using false evidence, Model Rule 3.4(b) prohibits a lawyer from counseling or assisting a witness to testify falsely. This duty to the opposing party and counsel complements the lawyer’s corresponding duty to the tribunal under Rule 3.3. Similarly, the Restatement provides that a lawyer shall not “knowingly counsel or assist a witness to testify falsely or otherwise to offer false evidence.” Restatement (Third) of the Law Governing Lawyers §120(1)(a) (2000).

Although Rule 3.4(b) does not expressly limit its applicability to instances in which the lawyer knows that he is counseling or assisting a witness to testify falsely, it has been construed to include such a knowledge requirement. See, e.g., In re Shannon, 876 P.2d 548 (Ariz. 1994) (lawyer did not know that revised answers to interrogatories were untrue so as to permit finding that he violated Rule 3.4(b)).

In its most dramatic application, Rule 3.4(b)'s prohibition against counseling falsehoods bars a lawyer from suborning perjury by intentionally inducing a witness to give false testimony. Most cases of discipline for counseling falsehoods involve this type of flagrant misconduct. E.g., In re Attorney Discipline Matter, 98 F.3d 1082 (8th Cir. 1996) (during recess lawyer instructed divorce client to deny adulterous incident). The lawyer’s acquittal on a criminal charge of suborning perjury does not preclude professional discipline for the underlying misconduct, the Eighth Circuit said in that case.

Rule 3.4(b)'s prohibition can be applied in other contexts that do not involve a direct instruction to lie. For example, a lawyer may “assist” a witness to testify falsely within the meaning of Rule 3.4(b) by remaining silent and taking no remedial action when the witness gives false testimony. See, e.g., In re Feld, 815 A.2d 383, 19 Law. Man. Prof. Conduct 49 (N.H. 2002) (lawyer tolerated client’s false denials in discovery responses).

Of particular note is 18 U.S.C. §1512(b), which provides penalties for “[w]hoever knowingly uses intimidation or physical force, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person,” with intent to “(1) influence, delay or prevent” the testimony of any person in an official proceeding. The term “misleading conduct” is defined to mean, among other things, “knowingly using a trick, scheme, or device with intent to mislead.” §1515(a)(3)(E). It is an affirmative defense that the defendant intended only to encourage the witness to testify truthfully. §1512(d).

Procuring Absence of Witness.

In general, it is a crime to induce a witness to withhold testimony, to absent himself from any proceeding to which he has been summoned, or to avoid legal process summoning him to testify. E.g., Model Penal Code §241.6(1)(c) (1980); see United States v. Schaffner, 715 F.2d 1009 (6th Cir. 1983) (prosecution of lawyer who advised his client to hide witness from service of subpoena); In re Holmes, 193 Cal. Rptr. 790 (Cal. Ct. App. 1983) (lawyer found in contempt for assisting her husband to avoid service of subpoena directing him to testify as witness in civil action).

Such conduct is clearly “unlawful” within the meaning of Model Rule 3.4(a)‘s prohibition against “unlawfully” obstructing the opponent’s access to evidence. See, e.g., In re Geisler, 614 N.E.2d 939 (Ind. 1993) (lawyer obstructed prosecutor’s access to evidence and assisted witnesses’ effort to withhold evidence in violation of Rule 3.4(a) by knowingly assisting witnesses’ efforts to be unavailable for service of subpoenas); Rhode Island Ethics Op. 91-9 (1991) (lawyer may not advise or cause potential witness in pending litigation to leave jurisdiction for purpose of becoming unavailable to testify); Utah Ethics Op. 99-06 (1999) (lawyers may not ethically devise plea agreements in criminal cases that call for police officer to ignore subpoena in defendant’s parallel state administrative proceeding).

This interpretation of Rule 3.4(a) is consistent with a large body of caselaw holding that lawyers may not persuade witnesses to flee or hide to prevent the opposing party from obtaining their testimony. E.g., Snyder v. California State Bar, 555 P.2d 1104 (Cal. 1976) (lawyer disbarred for, among other things, advising clients to be unavailable for depositions); Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Hohnbaum, 554 N.W.2d 550 (Iowa 1996) (lawyer acted unethically by encouraging client to stay away from civil trial for purpose of frustrating jury’s search for truth).

Ethics opinions, too, echo this rule. E.g., New York County Ethics Op. 711 (lawyer may not advise witness to make himself unavailable); see also Restatement (Third) of the Law Governing Lawyers §§116(2) and (3) (2000), which provide respectively that a lawyer may not “unlawfully obstruct another party’s access to a witness” or “unlawfully induce or assist a prospective witness to evade or ignore process obliging the witness to appear to testify.”

Dissuading Witness From Testifying.

While arranging for a witness to be absent from trial or hide from a subpoena clearly violates Rule 3.4(a), more subtle efforts to discourage testimony favorable to the opposing party can do so as well. For example, in Harlan v. Lewis, 982 F.2d 1255 (6th Cir. 1993), a defense lawyer in a medical malpractice action told another physician who had treated the alleged victim that he, too, could be sued and that without his testimony the lawsuit would probably not be successful. The court of appeals upheld the district court’s decision to sanction the lawyer $2,500 for violating Rule 3.4(a)'s prohibition against unlawfully obstructing another party’s access to evidence or from counseling anyone to conceal information having potential evidentiary value.

See also In re Stanford, 48 So. 3d 224, 26 Law. Man. Prof. Conduct 677 (La. 2010) (criminal defense lawyers obstructed access to evidence in violation of Rule 3.4(a) by asking crime victim to sign “confidentiality agreement” that had potential to inhibit her from testifying at trial and could have impeded prosecution of criminal case against their client); In re Smith, 848 P.2d 612 (Or. 1993) (reprimanding lawyer for conduct prejudicial to administration of justice for sending letter to examining doctor threatening to sue him and insurer if doctor expressed particular medical opinion); Nevada Ethics Op. 23 (1995) (lawyer may not discourage witness from testifying or urge witness to be uncooperative with opposing counsel); Utah Ethics Op. 04-06 (2004) (corporate counsel would obstruct access to evidence, in violation of Rule 3.4(a), by claiming to represent all corporate employees whose testimony is relevant); Virginia Ethics Op. 1426 (1991) (lawyer may not obstruct investigation of criminal matter by entering into discussions with victim’s mother and attempting to gain her cooperation); cf. In re Mertz, 712 N.W.2d 849, 22 Law. Man. Prof. Conduct 237 (N.D. 2006) (defense lawyer’s threat to sue alleged victim for defamation did not violate Rule 3.4(a) because client had plausible defamation claim).

An attempt to silence a witness may also implicate other disciplinary rules or laws. See, e.g., Addamax Corp. v. Open Software Found. Inc., 151 F.R.D. 504 (D. Mass. 1993) (counsel accused of suborning perjury); Florida Bar v. Machin, 635 So. 2d 938 (Fla. 1994) (prejudice to administration of justice).

A prosecutor may not dissuade a defense witness from testifying by threatening to charge the witness with perjury or by offering to give the witness favorable treatment for not testifying against the defendant. See Drobney v. Comm’r of Internal Revenue, 113 F.3d 670 (7th Cir. 1996) (commenting that if government attorney intimidated defense witness by threatening to charge him with perjury, such conduct would be serious ethical impropriety in addition to criminal violation); In re Bonet, 29 P.3d 1242, 17 Law. Man. Prof. Conduct 555 (Wash. 2001) (prosecutor violated Rule 3.4(b) and other rules when he offered to drop criminal charges against defense witness if witness would agree to invoke his Fifth Amendment right against self-incrimination and make himself unavailable to defense in ongoing trial).

Lawyers should avoid advising witnesses of their right not to appear in court if not subpoenaed. For one thing, such advice may violate the lawyer’s ethical obligation when dealing with a person who is not represented by counsel. Model Rule 4.3 prohibits a lawyer, in dealing with an unrepresented person on a client’s behalf, from giving the unrepresented person legal advice other than the advice to secure counsel, if the lawyer reasonably should know that the interests of the unrepresented person conflict with the interests of the client. See also State v. Martindale, 527 P.2d 703 (Kan. 1974) (lawyer disciplined for truthfully answering witnesses who asked whether they were obligated to wait in courthouse if not under subpoena and for failing to inform court why witnesses were absent).

Discouraging Cooperation With Opposing Counsel.

Model Rule 3.4(f) permits a lawyer to request a client’s relative or an employee or other agent of a client to refrain from giving information to an opposing party’s lawyer in the absence of compulsory process, so long as the lawyer reasonably believes that the person’s interests will not be adversely affected by declining to do so.

Except in that limited situation, it is improper to request that anyone other than a client not talk to counsel for the opposing party. Rule 3.4(f); Harlan v. Lewis; Briggs v. McWeeny; accord Restatement (Third) of the Law Governing Lawyers §116(4) (2000).

Although secrecy provisions in settlement agreements are apparently quite common, some commentators have argued that Rule 3.4(f) bars lawyers from arranging a noncooperation agreement as part of a settlement of a civil action. Bauer, Buying Witness Silence: Evidence-Suppressing Settlements and Lawyers’ Ethics, 87 Or. L. Rev. 481 (2008); Gillers, Speak No Evil: Settlement Agreements Conditioned on Noncooperation Are Illegal and Unethical, 31 Hofstra L. Rev. 1 (2002) (also arguing that these noncooperation agreements could amount to obstruction of justice).

▸Corporate counsel must keep this rule in mind in seeking to curb employees’ contacts with opposing counsel. See Colorado Ethics Op. 120 (2008) (corporation’s lawyer may not instruct corporate constituent to refrain from providing information to opponent unless lawyer reasonably determines that instruction will not be harmful to constituent); Utah Ethics Op. 04-06 (2004) (corporate counsel may request any employee whose interests will not be adversely affected to refrain from informally speaking with opposing counsel); Wisconsin Ethics Op. E-07-01 (2007) (organization’s counsel may ask—not require—constituents to refrain from speaking to opposing lawyer).

The exception in Rule 3.4(f) for a client’s employees applies to current employees. Utah Ethics Op. 04-06 (2004); Wisconsin Ethics Op. E-07-01 (2007). According to the Restatement, a request that a former employee not be interviewed by another party is appropriate only if the person continues to maintain a confidential relationship with the former employer “or if the person possesses extensive confidential information of the former employer.” §116 cmt. e.

In Comment e, the Restatement takes the position that a lawyer may inform any person of the right not to be interviewed by any other party but may not request that a person exercise that right or try to induce noncooperation, except when permitted by the exception in the rule. The comment also indicates that a lawyer may advise a person of the right to insist on conditions such as having counsel present at the interview and may insist that a person comply with a legal obligation of confidentiality to the lawyer’s client.

▸Much of the caselaw involves prosecutors who have discouraged witnesses from talking to defense counsel. An example is State v. Hofstetter, 878 P.2d 474 (Wash. Ct. App. 1994). After reviewing authority from other jurisdictions, the court held that “it is improper for a prosecutor to instruct or advise a witness not to speak with defense counsel except when a prosecutor is present.” A prosecutor may, however, inform witnesses of their right to choose whether to give a pretrial interview and their right to determine who shall be present at the interview, the court said.

▸Criminal defense lawyers have the same obligation not to discourage witnesses from speaking to the prosecutor. In re Stanford (criminal defense lawyers violated Rule 3.4(f) and other rules by asking crime victim to sign “confidentiality agreement” that had potential to inhibit her from testifying at trial); In re Alcantara, 676 A.2d 1030 (N.J. 1995) (lawyer’s request that client’s co-defendant refrain from giving testimony favorable to state violated Rule 3.4(f)). But see Hannon v. Superior Court, 564 P.2d 1203 (Cal. 1977) (defense lawyer not guilty of suppressing evidence for urging defense witness to remain silent prior to trial).

Offering Prohibited Inducements.

Model Rule 3.4(b) makes it unprofessional conduct for a lawyer to offer an inducement to a witness that is “prohibited by law.” Comment [3] to the rule states that “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.”

Section 117 of the Restatement forbids lawyers to offer or pay a witness any consideration “(1) in excess of the reasonable expenses of the witness incurred and the reasonable value of the witness’s time in providing evidence, except that an expert witness may be offered and paid a noncontingent fee; (2) contingent on the content of the witness’s testimony or the outcome of the litigation; or (3) otherwise prohibited by law.”

The “prohibited by law” phrase in Rule 3.4(b) makes it necessary for lawyers to look outside the rule to ascertain which inducements are prohibited by law and therefore unethical. The criminal law in every jurisdiction prohibits bribery and subornation of perjury, and decisional law supplies additional prohibitions.

In particular, witnesses may not be paid for “telling the truth,” because they are legally obligated to do so anyway. Golden Door Jewelry Creations Inc. v. Lloyds Underwriters Non-Marine Ass’n, 865 F. Supp. 1516 (S.D. Fla. 1994); Florida Bar v. Jackson, 490 So. 2d 935 (Fla. 1986); In re Kien, 372 N.E.2d 376 (Ill. 1977). But see Florida Bar v. Cillo, 606 So. 2d 1161 (Fla. 1992) (lawyer did not commit professional misconduct by paying former client, who had filed spurious complaint against him, to tell truth in disciplinary proceeding; however, court added that rules should be developed to make clear that compensation is improper unless factfinding body knows about it and approves it).

Fact Witnesses.

Witnesses may be paid for their actual expenses in attending court and a reasonable compensation for time lost in testifying, provided that payment is not conditioned on the content of the testimony. See Alaska Ethics Op. 93-2 (1993) (Rule 3.4(b) permits lawyer to reimburse nonlawyer or expert witness for expenses and lost time, but lawyer should be careful that compensation meets some objective standard of reasonableness in view of witness’s occupation and normal wages); California Ethics Op. 1997-149 (1997) (reasonable compensation is permitted and may be based on witness’s usual pay if employed, most recent rate of pay if unemployed, or what others earn for comparable activity); Colorado Ethics Op. 103 (1998) (expenses incurred and reasonable value of witness’s time); Delaware Ethics Op. 2003-3 (2003) (out-of-pocket expenses and lost income opportunities); Kentucky Ethics Op. E-400 (1998) (reasonable expenses and lost income actually incurred); New Hampshire Ethics Op. 1992-93/10 (1993) (reimbursement for attorneys’ fees that witness incurred defending contempt action arising out of litigation); South Carolina Ethics Op. 08-05 (2008) (when witness insists that his own lawyer be present during interview but does not want to pay for it, lawyer may advise client to pay fees of witness’s lawyer); Vermont Ethics Op. 2009-6 (reimbursement for lost wages is permissible but must be disclosed).

Ethics opinions take the view that it is proper under Rule 3.4(b) to compensate an occurrence witness for time spent in preparing to testify at a deposition or trial, provided that the payment is not conditioned on the content of the testimony and that the payment does not violate the law of the particular jurisdiction. ABA Formal Ethics Op. 96-402 (1996); Arizona Ethics Op. 97-07 (1998); California Ethics Op. 1997-149 (1997); Colorado Ethics Op. 103 (1998); Connecticut Informal Ethics Op. 92-30 (1992); Delaware Ethics Op. 2003-3 (2003); Illinois Ethics Op. 87-5 (1988); Kentucky Ethics Op. E-400 (1998); Wisconsin Ethics Op. E-90-3 (1990). Contra Pennsylvania Ethics Op. 95-126 (1995) (Rule 3.4(b) and state’s witness compensation statute can be read to disfavor compensation to nonexpert witnesses for time invested in preparing for testimony).

Compensation to fact witnesses beyond these types of payments, such as a flat fee for cooperation or a nonmonetary benefit of some sort, violates Rule 3.4(b). E.g., Florida Bar v. Wohl, 842 So. 2d 811 (Fla. 2003) (improper for lawyer to negotiate agreement for fact witness to receive “bonus” depending on usefulness of information she provided); Iowa Supreme Court Attorney Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 26 Law. Man. Prof. Conduct 725 (Iowa 2010) (lawyer offered illegal inducement by relaying his son’s offer for wife to receive favorable asset distribution in their upcoming divorce if wife would agree to shade her testimony in criminal case against her husband); In re Bruno, 956 So. 2d 577, 23 Law. Man. Prof. Conduct 272 (La. 2007) (attorney’s $5,000 payment to witness in tort class action was prohibited inducement).

It is clearly improper for a lawyer to pay a fact witness a fee that is contingent on the outcome of the case. West Virginia State Bar Comm. on Legal Ethics v. Sheatsley, 452 S.E.2d 75 (W. Va. 1994) (reprimanding lawyer who drafted agreement in which client promised to pay potential witness for information relating to client’s litigation, with additional payment in event of favorable outcome); Arizona Ethics Op. 97-07 (1998).

Prosecution Witnesses.

Prosecutors frequently promise contingent fees to informants and offer witnesses “compensation” beyond payment for their expenses, such as witness protection programs and favorable plea bargains. Courts in criminal cases generally tolerate these practices so long as the arrangement is disclosed to the defense. See, e.g., Hoffa v. United States, 385 U.S. 293 (1966); United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987). But see Cervantes-Pacheco, 826 F.2d at 316 (Rubin, J., concurring) (stating that paying contingent fee to informant based on outcome of criminal case violates Rule 3.4(b)).

The issue of inducements to government witnesses in federal prosecutions came to the forefront in 1998 when a panel of the U.S. Court of Appeals for the Tenth Circuit held that the federal law that prohibits the giving of gratuities in return for testimony, 18 U.S.C. §201, forbids prosecutors to obtain a witness’s testimony in return for an offer to extend leniency to the witness in his own prosecution. United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). The court decided to rehear the case en banc and vacated the controversial panel decision. On rehearing, the court held that Section 201 does not forbid the long-standing practice of leniency for testimony. United States v. Singleton, 165 F.3d 197, 14 Law. Man. Prof. Conduct 613 (10th Cir. 1999) (en banc). Since then, federal appeals courts have uniformly rejected the argument that leniency-for-testimony deals violate Section 201. E.g., United States v. Lowery, 166 F.3d 1119, 15 Law. Man. Prof. Conduct 51 (11th Cir. 1999).

Expert Witnesses.

With respect to expert witnesses, compensation must be reasonable but need not reflect the expert’s lost wages or expenses. Under the common law in most jurisdictions, it is improper to pay an expert witness a contingent fee. Rule 3.4(b) cmt. [3]; Person v. Ass’n of Bar of City of New York, 554 F.2d 534 (2d Cir. 1977); Kentucky Ethics Op. E-394 (1996); cf. Wirth v. State Bd. of Tax Comm’rs, 613 N.E.2d 874 (Ind. Tax. Ct. 1993) (acknowledging prevailing rule that it is inappropriate to pay expert witness contingent fee and citing cases supporting that view, but holding that testimony of experts paid with contingent fee is not subject to exclusion solely on that basis). But see District of Columbia Ethics Op. 233 (opining that firm may contract with nonlawyer consultants to share “success fee” that client pays law firm in event of favorable outcome of client’s case, and explaining that the D.C. version of Rule 3.4 permits payments of contingent fees to expert witnesses so long as they are not based on some percentage of recovery).

For criticism of the rule against compensating an expert witness on a contingent basis, see Note, Contingent Expert Witness Fees: Access and Legitimacy, 64 So. Cal. L. Rev. 1363 (1991).

There is some disagreement as to whether it is ethical to pay a contingent fee to a consultant to analyze a case and supply outside testifying experts, who are paid fixed fees. For example, compare Pennsylvania Ethics Op. 2001-24 (2001), advising that such an arrangement would be contrary to the prohibition against paying a witness based on the witness’s testimony or outcome of the case, with Ojeda v. Sharp Cabrillo Hosp., 10 Cal. Rptr.2d 230 (Cal. Ct. App. 1992), upholding the validity of a contingent fee contract between the plaintiff and a medical-legal consulting service in which the service agreed to review relevant records and provide local experts to testify in exchange for a percentage of any recovery, with the outside experts to be compensated on an hourly flat-fee basis. For guidance on this issue, see ABA Formal Ethics Op. 87-354 (1987), which notes that such an arrangement poses many of the same problems raised by direct payment of a contingent fee to an expert and advises that a lawyer who recommends such an arrangement may violate the Model Rules.