(6)
request a person other than a client to refrain from voluntarily giving
relevant information to another party unless:
(a) the person is a relative or a managerial
employee or other agent of a client; and
(b) the lawyer reasonably believes that the
person's interests will not be adversely affected by refraining from giving
such information.
Comment
[1] The procedure of the adversary system
contemplates that the evidence in a case is to be marshaled 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 the 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, including lost
income, 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] Rules of evidence and procedure are
designed to lead to just decisions and are part of the framework of the law.
Paragraph (c) permits a lawyer to take steps in good faith and within the
framework of the law to test the validity of rules; however, the lawyer is not
justified in consciously violating such rules and the lawyer should be diligent
in the effort to guard against the unintentional violation of them. As
examples, a lawyer should subscribe to or verify only those pleadings that the
lawyer believes are in compliance with applicable law and rules; a lawyer
should not make any prefatory statement before a tribunal in regard to the
purported facts of the case on trial unless the lawyer believes that the
statement will be supported by admissible evidence; a lawyer should not ask a
witness a question solely for the purpose of harassing or embarrassing the
witness; and a lawyer should not, by subterfuge, put before a jury matters
which it cannot properly consider.
[5] Paragraph (d) makes it clear that a
lawyer must be reasonably diligent in making inquiry of the client, or third
party, about information or documents responsive to discovery requests or
disclosure requirements arising from statutory law, rules of procedure, or
caselaw. "Reasonably" is defined in Rule 0.1, Terminology, as
meaning "conduct of a reasonably prudent and competent lawyer." Rule 0.1(i).
When responding to a discovery request or disclosure requirement, a lawyer must
act in good faith. The lawyer should impress upon the client the importance of
making a thorough search of the client's records and responding honestly. If
the lawyer has reason to believe that a client has not been forthcoming, the
lawyer may notrely solely upon the client's assertion that the response is
truthful or complete.
[6] To bring
about just and informed decisions, evidentiary and procedural rules have been
established by tribunals to permit the inclusion of relevant evidence and
argument and the exclusion of all other considerations. The expression by a
lawyer of a personal opinion as to the justness of a cause, as to the
credibility of a witness, as to the culpability of a civil litigant, and as to
the guilt or innocence of an accused is not a proper subject for argument to
the trier of fact and is prohibited by paragraph (e). However, a lawyer may
argue, on an analysis of the evidence, for any position or conclusion with
respect to any of the foregoing matters.
[7] Paragraph (f) permits a lawyer to advise
managerial employees of a client to refrain from giving information to another
party because the statements of employees with managerial responsibility may be
imputed to the client. See also Rule 4.2.
