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Prof Responsibility • Fairness
PR#070
Legal Definition
A lawyer may not: (1) unlawfully obstruct another party's access to evidence, or alter, spoliate or otherwise destroy evidence; (2) falsify evidence or counsel another to do so; (3) knowingly disobey an obligation
under the rules of the court; (4) make frivolous discovery requests or objections to valid discovery requests; (5) fail to return a document sent inadvertently; (6) allude to any matter in trial that will not be supported by admissible evidence; (7) deceive the court, opposing counsel or an opposing party by making false or misleading statements or failing to disclose a material fact when disclosure is necessary to prevent a fraudulent or criminal act; or (8) improperly contact an opposing party knowing that party is represented by counsel.
under the rules of the court; (4) make frivolous discovery requests or objections to valid discovery requests; (5) fail to return a document sent inadvertently; (6) allude to any matter in trial that will not be supported by admissible evidence; (7) deceive the court, opposing counsel or an opposing party by making false or misleading statements or failing to disclose a material fact when disclosure is necessary to prevent a fraudulent or criminal act; or (8) improperly contact an opposing party knowing that party is represented by counsel.
Plain English Explanation
The Duty of Fairness to Opposing Party and Counsel covers 8 situations:
(1) Unlawful obstruction of evidence: Lawyers must not prevent the other side from accessing relevant evidence. This maintains the integrity of fact-finding in legal proceedings.
Example: A lawyer discovers an email that weakens their client's case. They must not delete or hide this email, even if it's detrimental to their client's position.
(2) Altering or destroying evidence: Tampering with evidence in any way is strictly prohibited. This ensures that the court can rely on the authenticity of presented materials.
Example: A lawyer must not "edit" a contract to remove unfavorable clauses before submitting it as evidence, even if the client requests this.
(3) Falsifying evidence: Creating false evidence or encouraging others to do so is a severe breach of ethics. This rule upholds the truth-seeking function of the legal system.
Example: A lawyer cannot use ChatGPT to fabricate legal precedent (this has actually happened by some pretty dumb attorneys).
(4) Disobeying court obligations: Lawyers must respect and follow court rules and orders. This maintains the authority of the court and ensures fair proceedings.
Example: If a court orders the production of certain documents by a specific date, a lawyer must comply, even if the documents might hurt their case.
(5) Frivolous discovery requests or objections: Lawyers should not abuse the discovery process with baseless requests or objections. This promotes efficiency and prevents unnecessary delays.
Example: A lawyer should not file extensive, irrelevant document requests merely to burden the opposing party with excessive work.
(6) Failing to return inadvertently sent documents: If a lawyer receives privileged or confidential documents by mistake, they must promptly return or destroy them without taking advantage.
Example: If an opposing counsel accidentally emails a confidential strategy memo, the receiving lawyer must notify the sender and delete the email without reading it.
(7) Unsupported claims in court: Lawyers must have a good faith basis for any assertions made before a tribunal. This ensures that court time is not wasted on baseless claims.
Example: A lawyer cannot argue that a witness will testify to certain facts if they have no reasonable basis to believe the witness will actually do so.
(8) Improper contact with represented parties: Lawyers must not directly communicate with individuals they know are represented by counsel about the subject of the representation.
Example: A lawyer cannot call the CEO of a company they're suing to discuss settlement terms if they know the company has legal representation.
(1) Unlawful obstruction of evidence: Lawyers must not prevent the other side from accessing relevant evidence. This maintains the integrity of fact-finding in legal proceedings.
Example: A lawyer discovers an email that weakens their client's case. They must not delete or hide this email, even if it's detrimental to their client's position.
(2) Altering or destroying evidence: Tampering with evidence in any way is strictly prohibited. This ensures that the court can rely on the authenticity of presented materials.
Example: A lawyer must not "edit" a contract to remove unfavorable clauses before submitting it as evidence, even if the client requests this.
(3) Falsifying evidence: Creating false evidence or encouraging others to do so is a severe breach of ethics. This rule upholds the truth-seeking function of the legal system.
Example: A lawyer cannot use ChatGPT to fabricate legal precedent (this has actually happened by some pretty dumb attorneys).
(4) Disobeying court obligations: Lawyers must respect and follow court rules and orders. This maintains the authority of the court and ensures fair proceedings.
Example: If a court orders the production of certain documents by a specific date, a lawyer must comply, even if the documents might hurt their case.
(5) Frivolous discovery requests or objections: Lawyers should not abuse the discovery process with baseless requests or objections. This promotes efficiency and prevents unnecessary delays.
Example: A lawyer should not file extensive, irrelevant document requests merely to burden the opposing party with excessive work.
(6) Failing to return inadvertently sent documents: If a lawyer receives privileged or confidential documents by mistake, they must promptly return or destroy them without taking advantage.
Example: If an opposing counsel accidentally emails a confidential strategy memo, the receiving lawyer must notify the sender and delete the email without reading it.
(7) Unsupported claims in court: Lawyers must have a good faith basis for any assertions made before a tribunal. This ensures that court time is not wasted on baseless claims.
Example: A lawyer cannot argue that a witness will testify to certain facts if they have no reasonable basis to believe the witness will actually do so.
(8) Improper contact with represented parties: Lawyers must not directly communicate with individuals they know are represented by counsel about the subject of the representation.
Example: A lawyer cannot call the CEO of a company they're suing to discuss settlement terms if they know the company has legal representation.
Hypothetical
Hypo 1: Bob represents a plaintiff in a personal injury lawsuit. During discovery, Bob learns of a damaging eyewitness statement that contradicts his client's version of events. Bob decides to "lose" this statement and not produce it to the defense, rationalizing that they can find the witness themselves if they try hard enough. Result: Bob has violated his duty of fairness by unlawfully obstructing the defendant's access to evidence. Even if the defense could theoretically find the witness another way, Bob has an ethical obligation to produce the statement once he has it. Hiding unfavorable evidence is strictly prohibited.
Hypo 2: Sam asks his attorney Bob to help prepare him for his upcoming deposition. During their prep session, Sam tells Bob he plans to lie about certain key facts. Bob tells Sam this would be perjury, but agrees to help Sam make his false story sound more convincing. Result: Bob has violated his duty by assisting Sam in preparing false testimony. Even though Bob advised against lying, he cannot then help Sam become a more effective liar. Bob should refuse to participate and consider withdrawing if Sam insists on committing perjury.
Hypo 3: In a divorce case, Bob represents the husband. One evening, Bob runs into the wife at a restaurant. She's had a few drinks and seems emotional about the case. Bob strikes up a conversation, without disclosing he's her husband's lawyer, hoping to get useful information. Result: Bob has violated the rule against improperly contacting a represented party. Even though this was a chance encounter, Bob knowingly took advantage of the situation to communicate about the case. He had an ethical duty to immediately disclose his identity and end the conversation.
Hypo 4: Bob is defending a company in a product liability suit. The plaintiff's lawyer accidentally emails Bob a detailed litigation strategy memo clearly meant for co-counsel. Bob realizes the mistake but decides to read it anyway and use the information to his client's advantage. Result: Bob has violated his duty by failing to promptly notify opposing counsel of the inadvertently sent document. Upon realizing the mistake, Bob should have immediately alerted the other lawyer without reading the memo. Using the confidential information is clearly unfair and unethical.
Hypo 2: Sam asks his attorney Bob to help prepare him for his upcoming deposition. During their prep session, Sam tells Bob he plans to lie about certain key facts. Bob tells Sam this would be perjury, but agrees to help Sam make his false story sound more convincing. Result: Bob has violated his duty by assisting Sam in preparing false testimony. Even though Bob advised against lying, he cannot then help Sam become a more effective liar. Bob should refuse to participate and consider withdrawing if Sam insists on committing perjury.
Hypo 3: In a divorce case, Bob represents the husband. One evening, Bob runs into the wife at a restaurant. She's had a few drinks and seems emotional about the case. Bob strikes up a conversation, without disclosing he's her husband's lawyer, hoping to get useful information. Result: Bob has violated the rule against improperly contacting a represented party. Even though this was a chance encounter, Bob knowingly took advantage of the situation to communicate about the case. He had an ethical duty to immediately disclose his identity and end the conversation.
Hypo 4: Bob is defending a company in a product liability suit. The plaintiff's lawyer accidentally emails Bob a detailed litigation strategy memo clearly meant for co-counsel. Bob realizes the mistake but decides to read it anyway and use the information to his client's advantage. Result: Bob has violated his duty by failing to promptly notify opposing counsel of the inadvertently sent document. Upon realizing the mistake, Bob should have immediately alerted the other lawyer without reading the memo. Using the confidential information is clearly unfair and unethical.
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?
Under the Duty of Fair Representation, when may an attorney request that a person other than their client refrain from voluntarily providing information to another party?
What is the Duty of Fair Representation?
