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Prof Responsibility • Fairness
PR#069
Legal Definition
Under Rule 3.4(f), a lawyer may not request that a person other than a client refrain from voluntarily giving relevant information to another party except where the person is a relative, employee, or agent of a client and the lawyer reasonably believes the person's interest will not be adversely affected by refraining from providing such information.
Plain English Explanation
At its core, this rule aims to prevent lawyers from improperly interfering with the flow of relevant information in a case.
Picture a courtroom as a stage where the truth is meant to be revealed through the presentation of evidence and testimony. Now imagine if lawyers could simply shoo potential witnesses off that stage before they even had a chance to speak. That's essentially what this rule is trying to prevent.
The general principle is that lawyers can't go around telling people to shut up. However, there's an important exception - lawyers are allowed to advise certain people close to their client not to voluntarily say things to the other side. Specifically, this applies to relatives, employees, or other agents of the client.
But there's an important condition: the lawyer has to reasonably believe that keeping quiet won't harm that person's interests. It's like telling your client's cousin not to gossip about the case at Thanksgiving dinner, but only if you're pretty sure the cousin won't get in trouble for staying silent.
This rule recognizes that people closely connected to a client may have divided loyalties or feel pressured to talk. By allowing lawyers to advise them to stay quiet (within reason), it helps preserve the adversarial nature of the legal process while still protecting those in the client's inner circle.
The key is that this only applies to "voluntary" disclosures. If someone gets subpoenaed or formally questioned, all bets are off - a lawyer can't advise anyone to disobey a court order or lie under oath.
Picture a courtroom as a stage where the truth is meant to be revealed through the presentation of evidence and testimony. Now imagine if lawyers could simply shoo potential witnesses off that stage before they even had a chance to speak. That's essentially what this rule is trying to prevent.
The general principle is that lawyers can't go around telling people to shut up. However, there's an important exception - lawyers are allowed to advise certain people close to their client not to voluntarily say things to the other side. Specifically, this applies to relatives, employees, or other agents of the client.
But there's an important condition: the lawyer has to reasonably believe that keeping quiet won't harm that person's interests. It's like telling your client's cousin not to gossip about the case at Thanksgiving dinner, but only if you're pretty sure the cousin won't get in trouble for staying silent.
This rule recognizes that people closely connected to a client may have divided loyalties or feel pressured to talk. By allowing lawyers to advise them to stay quiet (within reason), it helps preserve the adversarial nature of the legal process while still protecting those in the client's inner circle.
The key is that this only applies to "voluntary" disclosures. If someone gets subpoenaed or formally questioned, all bets are off - a lawyer can't advise anyone to disobey a court order or lie under oath.
Hypothetical
Hypo 1: Bob is representing Sam in a personal injury lawsuit against a major corporation. During discovery, Bob learns that Sam's coworker, Tim, witnessed the accident. Bob knows Tim is loyal to Sam and would likely give testimony favorable to Sam's case. However, Bob is concerned that the opposing counsel might try to interview Tim first and potentially influence his recollection of events. Result: In this situation, Bob cannot ethically advise Tim not to voluntarily speak with the opposing counsel about the case. Tim is Sam's coworker, but unless Tim is employed by or acting as an agent of the corporation (Bob's actual client), he does not qualify as an "employee or agent" of the client under Rule 3.4(f). Therefore, Bob cannot advise Tim to refrain from speaking with the opposing counsel. Bob may, however, inform Tim of his rights and clarify that he is not obligated to speak voluntarily, but the decision must be left to Tim. If Tim is subpoenaed or formally questioned, he must respond truthfully.
Hypo 2: Bob is defending Sam in a criminal case. Bob learns that Sam's brother, George, has information about Sam's whereabouts on the night of the alleged crime. Bob believes George's testimony could potentially harm Sam's alibi defense. Result: Bob can ethically advise George not to voluntarily speak with the prosecution about Sam's case. As Sam's brother, George falls under the "relative" category in Rule 3.4(f). Bob reasonably believes that George's interests would not be adversely affected by remaining silent, as George is not suspected of any wrongdoing in the case. However, Bob must be careful not to suggest that George should lie or withhold information if formally questioned or subpoenaed to testify.
Hypo 3: Bob is representing Sam's company in a complex commercial litigation case. Amy, the company's CFO, has crucial information about the financial transactions at issue. Bob is worried that Amy might inadvertently reveal damaging information if approached by the opposing counsel. Result: Bob can ethically advise Amy not to voluntarily communicate with the opposing counsel about the case. As the CFO, Amy is clearly an "employee or agent" of Bob's client (Sam's company). Bob reasonably believes that Amy's interests align with the company's and that she would not be adversely affected by refraining from voluntary communications. However, Bob should remind Amy of her obligations to be truthful in any formal proceedings and should not advise her to destroy or alter any relevant documents.
Hypo 4: Bob is representing Sam in a divorce case. Sam's adult daughter, Tina, is aware of information about Sam's hidden assets that could affect the property division. Bob considers advising Tina not to voluntarily disclose this information to Sam's soon-to-be ex-spouse or their attorney. Result: In this case, Bob should NOT advise Tina to refrain from voluntarily providing information. While Tina is Sam's relative, Bob cannot reasonably believe that Tina's interests would not be adversely affected by withholding information about hidden assets. Advising Tina to conceal this information could potentially implicate her in fraudulent behavior or perjury if she is later questioned under oath. Additionally, in a divorce case, there are often legal and ethical obligations to provide full financial disclosure. Bob's proper course of action would be to advise Sam to disclose all assets truthfully and to refrain from involving Tina in any attempt to hide information from the court or the opposing party.
Hypo 2: Bob is defending Sam in a criminal case. Bob learns that Sam's brother, George, has information about Sam's whereabouts on the night of the alleged crime. Bob believes George's testimony could potentially harm Sam's alibi defense. Result: Bob can ethically advise George not to voluntarily speak with the prosecution about Sam's case. As Sam's brother, George falls under the "relative" category in Rule 3.4(f). Bob reasonably believes that George's interests would not be adversely affected by remaining silent, as George is not suspected of any wrongdoing in the case. However, Bob must be careful not to suggest that George should lie or withhold information if formally questioned or subpoenaed to testify.
Hypo 3: Bob is representing Sam's company in a complex commercial litigation case. Amy, the company's CFO, has crucial information about the financial transactions at issue. Bob is worried that Amy might inadvertently reveal damaging information if approached by the opposing counsel. Result: Bob can ethically advise Amy not to voluntarily communicate with the opposing counsel about the case. As the CFO, Amy is clearly an "employee or agent" of Bob's client (Sam's company). Bob reasonably believes that Amy's interests align with the company's and that she would not be adversely affected by refraining from voluntary communications. However, Bob should remind Amy of her obligations to be truthful in any formal proceedings and should not advise her to destroy or alter any relevant documents.
Hypo 4: Bob is representing Sam in a divorce case. Sam's adult daughter, Tina, is aware of information about Sam's hidden assets that could affect the property division. Bob considers advising Tina not to voluntarily disclose this information to Sam's soon-to-be ex-spouse or their attorney. Result: In this case, Bob should NOT advise Tina to refrain from voluntarily providing information. While Tina is Sam's relative, Bob cannot reasonably believe that Tina's interests would not be adversely affected by withholding information about hidden assets. Advising Tina to conceal this information could potentially implicate her in fraudulent behavior or perjury if she is later questioned under oath. Additionally, in a divorce case, there are often legal and ethical obligations to provide full financial disclosure. Bob's proper course of action would be to advise Sam to disclose all assets truthfully and to refrain from involving Tina in any attempt to hide information from the court or the opposing party.
Visual Aids
Related Concepts
In addition to the ABA rules under the Duty of Fairness to Opposing Party and Counsel, what additional rule does California impose?
Under the Duty of Fair Representation, what must a lawyer do if they receive incriminating evidence from their client?
What is the Duty of Fairness to Opposing Party and Counsel?
What is the Duty of Fair Representation?
