Litigation & Advocacy · 10-16% of the exam
14.1.1No obstruction or falsification of evidence (Rule 3.4(a)–(b))
On this page
- Rule 3.4(a)–(b) — Evidence obstruction and falsification
Rule 3.4(a)–(b) prohibits a lawyer from unlawfully destroying, concealing, or falsifying evidence and from coaching false testimony. The operative hedge is "unlawful": routine destruction under a pre-existing retention policy is permissible until litigation is reasonably anticipated; after that point, destroying relevant material is obstruction regardless of the policy's terms or how consistently it was followed before.
Why
The adversary system assumes both sides reach the same evidence and hear the same testimony. If a lawyer could make proof disappear or shape what a witness says, the outcome would measure who was willing to interfere with the record rather than what actually happened. Whoever held the file would decide what the tribunal could see.
Plain English
Do not unlawfully obstruct another party's access to evidence, and do not unlawfully alter, destroy, or conceal any document or material with potential evidentiary value — and do not counsel or assist anyone else to do it. Do not falsify evidence, counsel or assist a witness to testify falsely, or offer a witness an inducement prohibited by law. Advising a client on a lawful retention policy is permissible until litigation is reasonably anticipated.
Rule
Rule 3.4(a)–(b) — Evidence obstruction and falsification
A lawyer shall not:
Unlawfully obstruct another party's access to evidence (this includes urging a witness to depart the jurisdiction so as to avoid testifying).
Unlawfully alter, destroy, or conceal any document or other material with potential evidentiary value.
Counsel or assist another person to take any such act.
Falsify evidence, or counsel or assist a witness to testify falsely.
Offer an inducement to a witness that is prohibited by law.
Operative hedge: a lawyer may advise a client on its lawful document-retention policy before litigation is reasonably anticipated; routine destruction under that policy is not obstruction. Once litigation is reasonably anticipated, destroying relevant material becomes unlawful regardless of the policy's terms.
Trap
Questions · 2
Q 01ch14-e01
Question 1 of 2 · Rule 3.4(a)
Attorney served as in-house counsel to Manufacturer, a maker of commercial greenhouse ventilation units. A former distributor sent Manufacturer a letter announcing that suit over a canceled supply contract would be filed within the month, and Attorney read the letter the day it arrived. Manufacturer's written retention schedule called for quarterly deletion of internal email, and the next deletion was set for that same week. Attorney told the operations staff to run the deletion on schedule and said nothing about the letter. The staff deleted several years of email about the distributor account that afternoon. Is Attorney subject to discipline?
Keys 1 to 4 choose.