ER 3.4 Fairness to Opposing Party and Counsel

The Standard

“Fair competition in the adversarial system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedures and the like.” Cmt. 1 to ER 3.4. ER 3.4’s subparts set forth specific actions that lawyers shall not do, such as falsify evidence or in trial, allude to any matter that the lawyer does not reasonably believe is relevant, or will not be supported by admissible evidence. See ER 3.4(b) and (d). Because each subpart could stand alone, the entire rule must be read.

The Limitation

ER 3.4(b) does not prohibit lawyers from paying a witness or expert as otherwise permitted by law. Similarly, ER 3.4(a) does not always prohibit a lawyer from taking temporary possession of evidence to conduct limited testing where the evidence will not be altered or destroyed. Please call the Ethics Hotline for more detail.

FAQs

My client is the defendant in an ongoing lawsuit. When I instruct her to change the privacy settings on her social media, may I suggest she destroy posts?

No. ER 3.4(a) prohibits lawyers from counseling clients to destroy information that has potential evidentiary value.

My client is a large corporate entity. It asked me to prepare a document retention policy. How do I do that, without violating ER 3.4?

Comment 1 notes that, “the procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties.” You should conduct legal research regarding when litigation becomes reasonably foreseeable in Arizona. But absent reasonably foreseeable litigation, an entity may follow its retention policy. You should communicate with the client, however, that once litigation is foreseeable, the client must not destroy evidence. The ethics of following the established retention policy in a specific circumstance needs to be individually analyzed and there are also legal implications such as spoliation.

My client brought the murder weapon to my office. Now what?

ER 3.4(a) prohibits the lawyer from obstructing another party’s access to evidence. You are required to make the weapon available to the police or prosecutor but should do so anonymously to avoid implicating the client. See Hitch v. Pima County Superior Court, 146 Ariz. 588 (1985) (“[I]if the physical evidence is contraband, the attorney may be required to turn over the property even if he obtained that evidence from his client”); see also A.R.S. § 13-2809 (prohibiting tampering with evidence).

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ER 3.4 Fairness to Opposing Party and Counsel

The Standard

The Limitation

FAQs

Best Practices

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