LAW | ETHICS

When Lawyers Play Hide and Seek with Justice (Fairness to Opposing Party & Counsel)

Justice isn’t about hiding evidence. It’s about getting to the truth in a fair way.

Dealing with evidence in a legal context is serious business. If you’re looking for guidance on lawyer conduct to maintain the fairness of legal proceedings, the Model Rules are a great place to start. Specifically, Rule 3.4(a) sets forth the obligations of lawyers with respect to their conduct regarding evidence. It states that lawyers are barred from obstructing the opposing counsel’s access to evidence. The basic essence of the conduct calls for not concealing, destroying, or altering any evidence that may be required in connection with a case.

Imagine a lawyer representing a company in litigation alleging environmental pollution. For the discovery process, both parties have to go through all the documents and test samples in order to present an effective case. Under Rule 3.4(a), by discovery, both parties are supposed to divulge all the documents and environmental samples showing the entity’s duty for pollution. The lawyer shall not conceal or destroy them. If discovery happens — that’s when both sides can ask each other for documents — the attorney has to turn them over, unless they’re protected by legal exclusions like privacy rights or legal privileges.