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 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 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.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 3.4 (2002).

Comments to ABA Model Rule 3.4

[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. Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.

[3] With regard to paragraph (b), it is not improper to pay a witness’s 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.

[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.

Annotations

Destroying and Falsifying Evidence or Testimony

A lawyer may not take part in unlawfully altering, destroying or concealing documentary or other evidence that is potentially relevant to a matter. See La. Rules of Prof’l Conduct R. 3.4(a) (2004); see also Restatement (Third) of the Law Governing Lawyers § 118 (2000). Likewise, a lawyer may not assist a witness in testifying falsely. See id. § 120(1)(a). Nevertheless, it is permissible for a lawyer to “interview a witness for the purpose of preparing the witness to testify.” Id. § 116(1); see also State v. Morgan, 315 So. 2d 632, 635 (La. 1975). The line between permissible witness preparation, and impermissible witness “education” is sometimes difficult to draw.

Obstructing Access to Evidence or Testimony

A lawyer may not take part in unlawfully obstructing another party’s access to documentary or other evidence that is potentially relevant to a matter. See La. Rules of Prof’l Conduct R. 3.4(a) (2004); Restatement (Third) of the Law Governing Lawyers § 118(2) (2000) (stating that lawyer cannot obstruct access to evidence in violation of court order or obstruction of justice statute). Likewise, a lawyer may not request that a person other than a client refrain from talking with an opponent or an opponent’s lawyer unless: (1) that person is a relative, employee or other agent of the client, and (2) the lawyer reasonably believes that the person’s interests will not thereby be adversely affected. See La. Rules of Prof’l Conduct Rule 3.4(f) (2004); see also Restatement (Third) of the Law Governing Lawyers § 116 (2000).

Social Media

Given the potential harm social media can cause to peoples’ lives and cases, is it appropriate for a lawyer to advise a client to take down an embarrassing or case-imperiling post? An ethics opinion from the New York County Lawyers’ Association reached this conclusion:

An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages, consistent with the principles stated above. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on “private” social media pages, and what may be “taken down” or removed.

See NYCLA Ethics Op. No. 745 (Jul. 2, 2013). This is good advice. Rule 1.1, which requires a lawyer to be competent, suggests that a lawyer not only can, but should, advise his client about the possible case-related consequences of social-media postings. A client needs to know that the other side will be watching.

Rule 4.1 and Rule 3.3 would prohibit a lawyer from advising a client to post false images or information on a social media site for purposes of manufacturing favorable evidence (for example, by encouraging a personal injury client to post a sad picture of herself in a wheelchair when she was neither sad nor wheelchair-bound).

The issue of a lawyer-directed take down is more difficult. Rule 3.4(a) prohibits a lawyer from counseling a person, including a client, to “unlawfully obstruct another party’s access to evidence” or to “unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” A picture of a personal injury plaintiff jumping on a trampoline is a document “having potential evidentiary value” in a case in which the plaintiff claims that she cannot walk. Therefore, a lawyer clearly could not advise the plaintiff to destroy all copies of the photograph. But advising a client to remove a photo from Facebook is not advice “to destroy” or “to conceal” it. Such advice is equivalent to advising a client to remove—but not to destroy—an embarrassing picture posted on a billboard. In short, advising a client to take down a Facebook photo and to preserve it for production in the course of discovery should not run afoul of the rules. In contrast, a lawyer who advises a client to take down and destroy digital photographs from a social media site would violate Rule 3.4 and face the risk of severe sanctions. See Debra Cassens Weiss, Lawyer Agrees to Five-Year Suspension for Advising Client to Clean Up His Facebook Photos, ABA Journal On-Line, Aug. 7, 2013.

Payment of Witnesses

Money StackParagraph (b) prohibits lawyers from offering “an inducement to a witness that is prohibited by law.” Given this language, a lawyer must “look outside the rule to ascertain which inducements are prohibited by law and therefore unethical.” See ABA/BNA Lawyers’ Manual on Professional Cond. § 61:718 (2007). Louisiana law expressly prohibits only one type of “inducement”—a bribe. “Bribery” is the “giving or offering to give, directly or indirectly, anything of apparent present or prospective value” to any “[w]itness, or person about to be called as a witness, upon a trial or other proceeding” if the payment is made “with the intent to influence his conduct . . . .” See La. Rev. Stat. § 14:118(A)(1)(d); see also 18 U.S.C.A. § 201.

Louisiana decisional law contains no per se prohibition against payments to fact witnesses. The few reported decisions that address the issue reflect judicial disapproval only when the payment is made with improper motive. For example, the Louisiana Supreme Court disbarred a lawyer for paying a bribe to a witness with the intent to influence the witness’s testimony. See In re Hingle, 717 So. 2d 636 (La. 1998). Likewise, the Louisiana Supreme Court disbarred a lawyer who made a payment to a witness for the purpose of inducing him “to provide false and misleading information.” See La. State Bar Assoc. v. Thierry, 573 So. 2d 1099, 1103 (La. 1991). The Louisiana Supreme Court suspended a lawyer, in part, because he made a payment to a fact witness whose cooperation was contingent on the payment. See In re Bruno, 956 So. 2d 577, 578-79 (La. 2007).

Although no reported Louisiana decision addresses whether it is appropriate to pay a fact witness for the witness’s lost income and expenses attendant to trial or deposition preparation, the preponderance of persuasive authority suggests that a lawyer should not be subjected to discipline for making such a payment. For example, the Restatement of the Law Governing Lawyers permits a lawyer to pay the “reasonable expenses of the witness incurred and the reasonable value of the witness’s time spent in providing evidence.” See Restatement (Third) of the Law Governing Lawyers § 117(1) (2000). Comment “b” to this section clarifies that it encompasses time and expenses “incurred in preparation for and giving testimony, such as lost wages caused by the witness’s absence from employment.” Id. cmt. b (emphasis added). Likewise, the American Bar Association Committee on Ethics and Professional Responsibility has opined, as have most state bar associations that have considered the issue, that Rule 3.4(b) permits lawyers to pay fact witnesses for the income actually lost and expenses actually incurred to prepare for trial testimony. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-402 (1996). According to the committee,

there is no reason to draw a distinction between (a) compensating a witness for time spent in actually attending a deposition or a trial and (b) compensating the witness for time spent in pretrial interviews with the lawyer in preparation for testifying, so long as the lawyer makes it clear to the witness that the payment is not being made for the substance (or efficacy) of the witness’s testimony or as an inducement to “tell the truth.” The Committee is further of the view that the witness may also be compensated for time spent in reviewing and researching records that are germane to his or her testimony, provided, of course, that such compensation is not barred by local law.

Id. In summary, the Louisiana Rules of Professional Conduct, relevant statutory law, case law, and persuasive authority all indicate that a lawyer should not be subjected to discipline for paying a fact witness if:

  1. the payment is not motivated by an improper purpose, such as to obtain “inside information,” to obtain false testimony or to influence the content of the witness’s testimony;
  2. the amount paid merely compensates the witness for the reasonable value of the time and expenses actually incurred by the witness; and,
  3. the amount of the payment is not contingent on the witness’s testimony.

As to expert witnesses, a lawyer can lawfully pay a reasonable, noncontingent witness fee. See Restatement (Third) of the Law Governing Lawyers § 117(1) (2000).

Complying With Orders of the Tribunal

Paragraph (c) prohibits a lawyer from knowingly disobeying an obligation under the rules or rulings of a tribunal, unless the lawyer does so openly and because he or she contends that no “valid obligation exists.” See La. Rules of Professional Conduct Rule 3.4(c) (2004); see also Restatement (Third) of the Law Governing Lawyers § 105 (2000). Also, a lawyer can violate this rule by failing to cooperate with ODC requests. See In re Bark, 72 So. 3d 853, 856 (La. 2011) (disciplining lawyer for failure to appear for sworn statement and to provide financial records for trust accounts after promising to do so under oath pursuant to ODC investigation). Nor may a lawyer advise a client to disobey such an obligation.

Pretrial and Trial Conduct

As an analogue to Rule 3.1 (which prohibits lawyers from making frivolous claims and contentions), paragraph (d) of this rule prohibits lawyers from making “a frivolous discovery request,” or from failing “to make [a] reasonably diligent effort to comply with a legally proper discovery request.” La. Rules of Prof’l Conduct R. 3.4(d) (2004); Restatement (Third) of the Law Governing Lawyers § 110(3) (2000). During trial, a lawyer may not “allude to any matter” that is irrelevant or will not be supported by the evidence. See La. Rules of Prof’l Conduct R. 3.4(e) (2004); see also State v. Brisibi, No. 2011 KA 1517, 2012 WL 1012305, at *1-2 (La. Ct. App. 1st Cir. Mar. 23, 2012) (finding that prosecuting lawyer who improperly referred to voicemails not admitted into evidence during cross-examination violated 3.4). Furthermore, during trial a lawyer must not inject himself or herself personally into the merits of the case by asserting personal knowledge of facts, or by stating an opinion regarding various aspects of the case, unless the lawyer is a witness. See La. Rules of Prof’l Conduct R. 3.4(e) (2004); see also Restatement (Third) of the Law Governing Lawyers § 107 (2000). For example, it is improper for a prosecutor to state at trial that he “expected” a witness “to tell the truth.” See State v. Floyd, 544 So. 2d 616, 619 (La. Ct. App. 3d Cir. 1989).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving a lawyer’s abuse of the legal process: disbarment, when the lawyer knowingly violates a court rule with the intent to obtain a benefit for the lawyer or another, or when the lawyer intentionally tampers with a witness, and causes serious or potentially serious injury to a party, or causes significant or potentially significant interference with the outcome of the legal proceeding; suspension, when the lawyer knows that he is violating a court rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding; reprimand, when the lawyer negligently fails to comply with a court rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a court proceeding; and, admonition, when the lawyer engages in an isolated instance of negligence in complying with a court rule, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with a legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions std. 6.2 (1992) (Abuse of Legal Process); id. stds. 6.21-6.24; id. std. 6.31 (Intentional Witness Tampering).

Notes

This page was revised on August 5, 2013.