Document 99Xe44KEeEgodnK6vNZaRD9m5
TO: FROM:
RE: DATE:
MEMORANDUM John Kim Deborah Mailander Pennsylvania Rules of Professional Conduct August 5, 1993
Attached is a copy of Pennsylvania1s Rules of Professional
Conduct for your use during the Jeffrey Bair deposition. Although
Mr. Bair now practices in Aiken, South Carolina, he is admitted
only in Pennsylvania.
He is currently Senior Counsel at
Westinghouse Savannah River Co.
Pennyslvania's disciplinary rules for destruction of evidence,
for acts on or after March 31, 1988
A lawyer shall not unlawfully obstruct another p a r t y 1s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value or assist another person to do any such act.
Rule 3 . 4 (A), Rules of Professional Conduct. Acts prior to
March 31, 1988 are governed by the Code of Professional
Responsibility. Relevant portions of the code include DR 7*
109(A), 7--109(B), and 7-106(C)(7). I have sent Pennsylvania's
rules which also have excerpts the code with July Lockwood.
Mr. Bair in his 22 page memo proposed and quite possibly
implemented a program of document destruction which violates the
ethical rules by obstructing access to evidence. This issue may be
interesting to bring up during the deposition.
RULES OF
PROFESSIONAL CONDUCT
Includes Amendments Through April 1,1989
Adopted by Order of the Supreme Court of Pennsylvania dated October 16, 1987 to take effect April 1, 1988 at which time the Rules of Professional Conduct shall supersede the present Code of Professional Responsibility.
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IN THE SUPREME COURT OF PENNSYLVANIA
IN R: CODE OF PROFESSIONAL ' : No. 412 ,
RESPONSIBILITY
: DisciplinaryDocket No. 2
IN RE: RULES OF PROFESSIONAL : No. 412
CONDUCT
: DisciplinaryDocket No. 2
ORDER
AND NOW, this / v p ^ ' day of
19B7, upon recom
mendation of'the Disciplinary Board of the Supreme Court of
Pennsylvania, it is ORDERED, pursuant to Article V, Section 10 of
the Constitution of Pennsylvania, that:
1. The Rules of Professional Conduct are adopted and pro
mulgated in the form attached hereto. Any Comments or Compari
sons to the Code of Professional Responsibility shall not be a
part of the Rules of Professional Conduct.
2. This order shall take effect on April 1, 198B at which
time the Rules of Professional Conduct shall supersede the
present Code of Professional Responsibility.
3. The Rules of Professional Conduct, as adopted hereby, do
not apply to professional misconduct occurring on or before March
31, 1968. Such misconduct shall be governed by the present code
of Professional Responsibility, which is continued in full force
and effect as grounds for disciplinary action, as if this order
had not been adopted.
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RULE 3.4 Fairness to O pposing P arty 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 or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, pay. offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness' testimony or the outcome of the case: but a lawyer may pay, cause to be paid, guarantee or acquiesce in the payment of:
(1) expenses reasonably incurred by a witness in attending or testifying.
(2) reasonable compensation to a witness for the witness' loss of time in at tending or testifying, and
(3) a reasonable fee for the professional services of an expert witness:
(c) When appearing before a tribunal, assert the lawyer's personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused: but the lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated herein: or
(d) request a'petson other than a client to refrain from voluntarily giving relevant informationn 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 ad versely affected by refraining from giving such information and such conduct is not prohibited by Rule 4.2.
COMMENT:
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.
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 pro ceeding 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.
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.
Paragraph (d) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests withThose of the client. See also Rules 4.2 and 4.3(b).
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CODE COMPARISON:
With regard to Rule 3.4fa). DR 7-109IA) provides that "A lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal. . . DR 7-109(B) provides that "A lawyer shall not advise or cause a person to secrete himself. . , for the purpose of making him unavailable as a witness. . . ." DR 7-106(C)(7) provides that a lawyer shall not " Intentionally or habitually violate any established rule of procedure or of evidence.*'
Wth regard to Rule 3.4(b), DR 7-102(A)(6) provides that a lawyer shall not "Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-109(C) provides that "A lawyer shall not pay. offer to pay. or acquiesce in the payment of compensation to a witness contingent on the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) Expenses reasonably incurred by a witness in attending or testifying; (2) Reasonable compensation to a witness for his loss of time in attending or testifying; (or; (3) A reasonable fee for the professional services of an expert witness." EC 7-28 states tnat "Witnesses should always testify truthfully and snould be free from any financial inaucements that might tempt them to do otherwise."
With regard to Rule 3.4(d), DR 7-104(A)(2) provides that a lawyer shall not "Give advice to a persog who is not represented. . . other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."
RULE 3.5 Im p a rtia lity and D ecorum o f th e Tribunal A lawyer shall not:
(a) seek to intluence a judge, juror, prospective juror or other official by means prohibited by law:
(b) communicate ex parte with such a person except as permitted by law; or
(c) engage in conduct disruptive to a tribunal.
COMMENT: Many forms of improper influence upon-a tribunal are proscribed by criminal law. Others are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions. The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation: the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
CODE COMPARISON: With regard to Rule 3.5(a), DR 7-108(A) provides that "Before the trial of a case a lawyer. . . shall not communicate with . . . anyone he knows to be a member of the venire.. . DR 7-108(B) provides that "During the trial of a case . . . A lawyer. . . shall not communicate with . . . a juror concerning the case." DR 7-110(B) provides
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For additional copies, please write or call: The Disciplinary Board of the Supreme Court of Pennsylvania
First Floor Two Lemoyne Drive Lemoyne, PA 17043
Phone: (717) 731-7073
RECEIVED AUG - 2 1993
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