Concealing Evidence and Documents - July 11 Flashcards
In response to a proper discovery request in litigation, a lawyer instructed her client to turn over all email communication related to the dumping of toxic waste. During the subsequent trial, the lawyer learned that the client had altered some emails before turning them over to the opposing party. These alterations changed the facts contained in the emails, and by doing so made the emails appear to favor the client instead of favoring the opposing party. The emails had not yet been placed in evidence.
Is the lawyer required to take reasonable remedial measures to rectify the client’s conduct? (Q)
Yes. The lawyer must take reasonable remedial measures to rectify the client’s conduct. A lawyer who knows that her client intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to an adjudicative proceeding must take reasonable remedial measures. Reasonable remedial measures may include making a disclosure to the tribunal to the extent reasonably necessary to rectify the situation.
Here, the lawyer discovered that the client had engaged in fraudulent conduct by altering the emails produced to the opposing party. Thus, the lawyer must take reasonable remedial measures to rectify the client’s conduct, such as trying to persuade the client to turn over the original emails, or, if necessary, disclosing the matter to the tribunal. (Q)
May a lawyer unlawfully obstruct another party’s access to evidence or advise or assist another person to do so? (Q)
No. A lawyer may not unlawfully obstruct another party’s access to evidence, nor may a lawyer advise or assist another person in doing so. Among other things, this prohibition precludes a lawyer from carrying out or assisting in the unlawful alteration, destruction, or concealment of a document or other material that has potential evidentiary value.
A lawyer was representing a client in a tax dispute. Opposing counsel sent a lawful discovery request asking for all documents related to the tax dispute. While going through papers gathered from the client’s home office, the lawyer found documents that potentially had evidentiary value relevant to the tax dispute. The lawyer realized that the papers were adverse to the client’s position. The lawyer hid the papers in an air vent, intending that they not be revealed to the opposing party.
Has the lawyer engaged in prohibited conduct? (Q)
Yes. The lawyer has engaged in prohibited conduct. A lawyer is prohibited from unlawfully obstructing another party’s access to evidence. Among other things, this prohibition precludes a lawyer from carrying out the unlawful alteration, destruction, or concealment of a document or other material that has potential evidentiary value.
Here, the lawyer found documents that he knew would have evidentiary value in the dispute that was the subject of the representation. The lawyer then concealed this evidence by hiding it, with the intent to prevent the other side from having access to it. Thus, the lawyer has engaged in prohibited conduct.
May a lawyer falsify evidence? (Q)
No. A lawyer may not falsify evidence. This prohibition also bars a lawyer from advising or assisting a witness to testify falsely.
May a lawyer make a frivolous discovery request or fail to make reasonably diligent efforts to comply with another party’s legitimate discovery request? (Q)
No. A lawyer may not make a frivolous discovery request, nor may a lawyer fail to make reasonably diligent efforts to comply with another party’s legitimate discovery request. These obligations may also exist under applicable court rules governing discovery.
