Over the years, I’ve heard a legitimate question from my personal injury clients. It is something along the lines of the following:
“I’ve been hurt and the other side has records, documents, pictures and things of that nature that will help my case. How do I know that they will be produced?” That’s a very valid question.
Let me start off by assuring you as the would-be client that the other side and its lawyer has a duty to be ethical and candid. The highest court of Massachusetts, the Supreme Judicial Court, has established and promulgated ethical rules. They are contained in Supreme Judicial Court Ethical Rule 3.07. Specifically, let’s look at two. Ethical Rule 3.3 of 3:07 speaks of candor toward the tribunal and 3.4 speaks to fairness to the opposing party and counsel.
You can sense right away that the other side can’t just get away with providing what they want to provide and hiding other documents. The rules referred to in the above speak to candor, honesty and fairness. When it references “the tribunal,” it doesn’t mean just at a trial. It governs what goes on in pre-trial motions and in discovery between the person suing and the person/entity being sued. When we break it down, we see that in Rule 3.3 “a lawyer shall not knowingly make a false statement of fact or law to a tribunal and shall not fail to correct a false statement that he or she previously made to the tribunal.”
I want to hone in on (b) of 3.3. “A lawyer who represents a client in a proceeding who knows that person intends to engage in or has engaged in criminal or fraudulent conduct related to the proceeding, [that] lawyer shall take reasonable remedial measures, including if necessary, disclosure to the tribunal.” [emphasis added] I suggest this imposes quite a burden on a side that may try to conceal and deliberately not reveal various documents, for that would be fraudulent conduct related to the proceeding. Therefore, in the personal injury cases that I handle, I do my best to make sure that the defendant can’t do it and his/her/its lawyer won’t allow the client to do it. These are very helpful rules and they should be brought to the other side’s attention.
If we take a look at Rule 3.4 we see that a lawyer cannot unlawfully obstruct another party’s access to evidence. Additionally, the lawyer cannot alter, destroy or conceal a document which has potential “evidentiary value.” That is quoted exactly from (a) of 3.4.
Those concepts, indeed those ethical rules, should go a long way to inducing a lawyer who might not otherwise be candid to reassess and have his client similarly reassess any doubtful conduct. Hopefully, it will also serve to reassure my client who is legitimately concerned about the fair and full production of documents.
If you are interested, you may want to look at the following from Supreme Judicial Court 3:07:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(3) offer evidence that the lawyer knows to be false, except as provided in Rule 3.3(e). If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including if necessary, disclosure to the tribunal.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
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. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.
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