Rule 3.4.Fairness to Opposing Party and Counsel
A lawyer shall not:
(a)unlawfully obstruct another party's access to evidence 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)falsify evidence, counsel or assist a witness to testify
falsely, or offer an inducement to a witness that is prohibited by law;
(c)knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion that no valid
obligation exists;
(d)in pretrial procedure, make a frivolous discovery request or
fail to make a reasonably diligent effort to comply with a legally
proper discovery request by an opposing party;
(e)in trial, allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts in issue except
when testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the culpability of a
civil litigant or the guilt or innocence of an accused; or
(f)request a person other than a client to refrain from
voluntarily giving relevant information to another party unless:
(1)the person is a relative of a client 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.
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ANNOTATIONSCOMMENT
[1]The procedure of the adversary system contemplates that
the evidence in a case is to be marshalled competitively by the contending
parties. Fair competition in the adversary system is secured by
prohibitions against destruction or concealment of evidence, improperly
influencing witnesses, obstructive tactics in discovery procedure, and
the like.
[2]Documents and other items of evidence are often
essential to establish a claim or defense. Subject to evidentiary
privileges,
the right of an opposing party, including the government, to obtain evidence
through discovery or subpoena is an important procedural right. The
exercise of that right can be frustrated if relevant material is
altered, concealed or destroyed. 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. Falsifying evidence is also generally a criminal offense.
Paragraph (a) applies to evidentiary material generally, including
computerized information.
[3]With regard to paragraph (b), it is not improper to pay
a witness' 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.
In order to bring about just and informed decisions, evidentiary
and procedural rules have been established by tribunals to permit the
inclusion of relevant evidence and argument and the exclusion of all other
considerations. The expression by a lawyer of the lawyer's personal opinion
as
to the justness of a cause, as to the credibility of a witness, as to the
culpability of a civil litigant, or as the guilt or innocence of an accused
is
not a proper subject for argument to the triers of fact. It is improper as
to
factual matters because admissible evidence possessed by a lawyer should be
presented only as sworn testimony. It is improper as to all other matters
because, were the rule otherwise, the silence of a lawyer on a given occasion
could be construed unfavorably to the client. However, a lawyer may argue
based on the lawyer's own analysis of the evidence, for any position or
conclusion with respect to any of the foregoing matters.
[4]Paragraph (f) permits a lawyer to advise employees of a
client to refrain from giving information to another party, because
employees may identify their interests with those of the client. See
also Rule 4.2.
COMMITTEE COMMENT
Many of the provisions of Rule 3.4 are similar to provisions in
the Code. The main differences occur in subsections (d) and (f).
Subsection (d) has no Code analog but the Committee felt that (d) was a
sound addition because abuse of discovery is a serious problem with our
system of justice. Subsection (f) is a little broader than DR
7-106(C)(5) in that it allows a lawyer to give advice in certain
circumstances to relatives or employees of a client. The Committee felt
it was appropriate to broaden the Code provision to allow a lawyer to
request that a relative or employee of a client not volunteer
information to another party because in many such situations the
relative or employee will identify with the interests of the client.
Some language from EC 7-24 was added to the Comment section
because the Committee felt that this language was helpful in explaining
the reasons why the conduct elaborated in subsection (e) is proscribed.
ANNOTATION
Annotator's note.
Rule 3.4 is similar to
DR 1-102, DR 7-102, DR 7-104, and DR 7-106 as they
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing
DR 7-104 have
been included in the annotations to this rule.
Cases construing DR 1-102 have been included under Rule 3.1, cases construing
DR 7-102 have been included under Rule 1.2, and cases construing DR 7-106 have
been included under Rule 3.3.
Thirty-day suspension, petition for reinstatement requirement, and requirement of
payment of costs of prior disciplinary proceedings justified where aggravating factors
include attorney's previous public censure, refusal to acknowledge the wrongfulness of his
conduct, substantial experience in the practice of law, and indifference to making restitution.
In re Bauder, 980 P.2d 507 (Colo. 1999).
Ninety-day suspension justified where attorney's failure to respond to
discovery requests resulted in default and entry of judgment against client
for $816,613. People v. Clark, 927 P.2d 838 (Colo. 1996).
Ninety-day suspension and order of restitution as a condition of reinstatement
was justified where attorney failed to pay court-ordered award of attorney's fees resulting
from his filing of a frivolous motion, without regard to whether this debt was subsequently
discharged in attorney's bankruptcy proceedings. People v. Huntzinger, 967 P.2d 160 (Colo.
1998).
Attorney conduct violating this rule, in conjunction with other rules, sufficient to
justify disbarment when attorney failed to comply with court orders applicable to his
child support payments until after contempt citation was issued and attorney was ordered to
report to jail to begin serving his sentence, and also committed numerous other violations
consisting of knowingly commingling and misappropriating clients' funds, and neglecting
multiple cases resulting in the entry of default judgments against attorney's clients. People
v. Gonzalez, 967 P.2d 156 (Colo. 1998).
Conduct violating this rule in conjunction with other disciplinary rules, where
mitigating factors were present, warrants public censure. People v. Davis, 950 P.2d 586
(Colo. 1998).
Conduct violating this rule in conjunction with other
disciplinary rules is sufficient to justify suspension.
People v. Barr, 855 P.2d 1386 (Colo. 1993);
People v. Babinski, 951 P.2d 1240 (Colo. 1998);
People v. Blunt, 952 P.2d 356 (Colo. 1998);
People v. Hanks, 967 P.2d 144 (Colo. 1998);
People v. Harding, 967 P.2d 153 (Colo. 1998);
In re Demaray, 8 P.3d 427 (Colo. 1999).
Conduct violating this rule in conjunction with other disciplinary rules is sufficient
to justify disbarment. People v. Singer, 955 P.2d 1005 (Colo. 1998);
In re Hugen, 973 P.2d 1267 (Colo. 1999).
Cases Decided Under Former DR 7-104.
Rule held inapplicable to district attorney's communications with
defendant when communications are unrelated to pending charges for which
defendant had retained counsel.
People v. Hyun Soo Son, 723 P.2d 1337 (Colo. 1986).
Evidence sufficient to justify suspension from the practice of law.
People v. Belfor, 197 Colo. 223, 591 P.2d 585 (1979);
People v. Zinn, 746 P.2d 970 (Colo. 1987).
Conduct violating this rule in conjunction with other
disciplinary rules is sufficient to justify suspension.
People v. Crews, 901 P.2d 472 (Colo. 1995).
Applied in
People ex rel. MacFarlane v. Boyls, 197 Colo. 242, 591 P.2d 1315 (1979);
In re East Nat'l Bank, 517 F. Supp. 1061 (D. Colo. 1981).
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