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Ethics Opinion

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August 22, 1990


    A lawyer shall affirmatively divulge to the tribunal, opposition counsel and the lawyer's client the false nature of any evidence tendered during pretrial discovery proceedings.

    If during discovery evaluations by reviewing experts any modification of evidence occurs, a lawyer shall make this change known to the client, the opposition lawyers, and the court.

    References: MRPC 3.3, 3.4, 8.4(b),(c); In re Barrow, 294 SE2d 785 (S Car 1982); In re Chambers, 642 P2d 286 (Ore 1982); Daniel v. Penrod Drilling Co, 393 F Supp 1056 (ED La 1975); In re Grimes, 414 Mich 483 (1982); Integration of Nebraska State Bar Ass'n, 275 NW 265 (Neb 1937); Ward v. Ochoa, 284 So 2d 385 (Fla 1973).


While various defense expert witnesses were serially examining a shotgun which a lawyer's client sold and which had misfired injuring the plaintiff, a small amount of foreign material lodged "into the rear of the receiver and into the recess for the recoil buffer" was lost. Plaintiff's counsel has filed a pretrial discovery request for access to the firearm for inspection, and the lawyer has tendered the evidence.

The lawyer asks for guidance relating to ethical obligations to advise the court, opposition counsel and the lawyer's own client as to the change in the evidence. The lawyer intends to call as an expert witness one who had examined the evidence only after its modification.

The applicable rules are MRPC 3.3 (candor toward the tribunal) and MRPC 3.4 (fairness to opposing party and counsel).

MRPC 3.3 states in part:

    "(a) A lawyer shall not knowingly:

      "(1) make a false statement of material fact or law to a tribunal;

      "(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.

      ". . .

      "(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures."

MRPC 3.4 states in part:

    "A lawyer shall not:

      "(a) unlawfully obstruct another party's access to evidence; unlawfully alter, destroy, or conceal . . . material having potential evidentiary value; or counsel or assist another person to do any such act;

      "(b) falsify evidence, counsel or assist a witness to testify falsely, . . .;

      ". . .

      "(d) in pretrial procedure, . . . fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party; . . . ."

MRPC 3.3(a)(1) provides that a "false statement of a material fact" shall not knowingly be made to a tribunal. MRPC 3.3(a)(2) provides that a lawyer shall not knowingly fail to disclose a material fact to a tribunal "when disclosure is necessary to avoid assisting a . . . fraudulent act" by the client. Pursuant to this provision, the lawyer "must disclose the truth even if the tribunal does not ask the lawyer to do so." Therefore, whatever response is made in answer to the plaintiff's discovery request for inspection should advise both the tribunal and plaintiff's counsel of the "lost evidence." While the facts do not reveal whether the client is aware of the modification, the lawyer must tell the client.

MRPC 3.4(a) prohibits a lawyer from "unlawfully . . . conceal[ing] . . . material having potential evidentiary value; or counsel or assist another person to do any such act." MRPC 3.4(b) provides that a lawyer shall not "assist a witness to falsely testify." The lawyer may not silently assert that the condition of the evidence has not changed since the time of the incident, and may not fail to inform the court or counsel as to the true nature of the evidence.

Further, to permit the expert witness to testify on the condition of the armament when the expert witness examined it would imply that either this was its condition at the time of the injury or that the witness is unaware of its condition at that precise time. These conclusions are known by the lawyer to either be false or to have a false basis. By allowing any such testimony, the lawyer would be assisting the witness to conceal the "foreign debris" from the jury and thus deny to the jury evidence that would have "potential evidentiary value." The lawyer would further be thus assisting a witness to testify falsely.

MRPC 3.4(d) provides, in part, that a lawyer shall not "in pretrial procedure . . . fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party." The lawyer's tendering of the modified evidence without notice of its known post-injury changes would not be "reasonably diligent."

Failing to respond to discovery requests in a full, truthful, and complete manner may subject a lawyer to discipline. See In re Barrow, 278 SC 276, 294 SE2d 785 (1982), lawyer reprimanded for continuing through discovery having knowledge of altered evidence and not revealing it to opposing counsel. See also In re Grimes, 414 Mich 483, 326 NW2d 380 (1982), license revoked for counseling client to give false information; In re Chambers, 292 Or 670, 642 P2d 286 (1982), lawyer suspended for making false statement of fact to benefit the client.

While deception occasioned upon the tribunal or opposition by silence or by affirmative statement is improper, the duty to affirmatively state facts so that a fraud may not continue to occur is likewise required. See Daniel v. Penrod Drilling Co, 393 F Supp 1056 (ED La 1975); Ward v. Ochoa, 284 So 2d 385 (Fla 1973).

The lawyer's concern for the client and the possible injury the client may suffer if the court utilizes Standard Jury Instruction 6-10 is illusory. The trial court may choose not to give Standard Jury Instruction 6-10; it may decide under the facts to modify that instruction; the jury may deem the client not at fault even were such an instruction given, if the jury believes the experts unknowingly and unintentionally modified the shotgun. Moreover, it appears the "foreign material" might not have been a significant factor in the condition of the injury.

The lawyer is required to advise the tribunal, the opposition lawyers and the lawyer's client of the changed condition of the evidence and facts relating to the "lost evidence." Failure to do so would be fraudulent conduct reflecting on the lawyer's fitness, MRPC 8.4(b), and conduct prejudicial to the administration of justice, MRPC 8.4(c). The lawyer may not allow the expert witness to testify concerning evidence which has been altered without disclosing the alteration.



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