1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
likelihood that the tribunal will permit the lawyer to withdraw, the lawyer is also required to inform
the court that the request for permission to withdraw is required by the Rules of Professional
Conduct. This statement also serves to advise the tribunal that something is amiss without
providing the tribunal with any of the information related to the representation that is protected by
Rule 1.6. These Rules, therefore, are intended to preserve confidentiality while requiring the lawyer
to act so as not to assist the client with the consummation of the fraud. This reflects a judgment that
the legal system will be best served by rules that encourage clients to confide in their lawyers who
in turn will advise them to rectify the fraud. Many, if not most, clients will abide by their lawyer’s
advice, particularly if the lawyer spells out the consequences of failing to do so. At the same time,
our legal system and profession cannot permit lawyers to assist clients who refuse to follow their
advice and insist on consummating an ongoing fraud.
[11] Once the lawyer has made a request for permission to withdraw, the tribunal may grant
or deny the request to withdraw without further inquiry or may seek more information from the
lawyers about the reasons for the lawyer’s request. If the judge seeks more information, the lawyer
must resist disclosure of information protected by Rule 1.6, but only to the extent that the lawyer
may do so in compliance with Rule 3.1. If the lawyer cannot make a non-frivolous argument that
the information sought by the tribunal is protected by the attorney-client privilege, the lawyer must
respond truthfully to the inquiry. If, however, there is a non-frivolous argument that the information
sought is privileged, paragraph (h) requires the lawyer to invoke the privilege. Whether to seek an
interlocutory appeal from an adverse decision with respect to the claim of privilege is governed by
Rule 1.2 and 3.1.
[12] If a lawyer is required to seek permission from a tribunal to withdraw from the
representation of a client in either a civil or criminal proceeding because the client has refused to
rectify a perjury or fraud, it is ultimately the responsibility of the tribunal to determine whether the
lawyer will be permitted to withdraw from the representation. In a criminal proceeding, however, a
decision to permit the lawyer's withdrawal may implicate the constitutional rights of the accused and
may even have the effect of precluding further prosecution of the client. Notwithstanding this
possibility, the lawyer must seek permission to withdraw, leaving it to the prosecutor to object to the
request and to the tribunal to ultimately determine whether withdrawal is permitted. If permission to
withdraw is not granted, the lawyer must continue to represent the client but cannot assist the client
in consummating the fraud or perjury by directly or indirectly using the perjured testimony or false
evidence during the current or any subsequent stage of the proceeding. A defense attorney who
complies with these rules is acting professionally without regard to the effect of the lawyer's
compliance on the outcome of the proceeding.
[13] If a lawyer comes to know that tangible items or documents that the lawyer has
previously offered into evidence have been altered or falsified, paragraph (g) requires that the lawyer
withdraw or disaffirm the evidence but does not otherwise permit disclosure of information
protected by Rule 1.6. Because disaffirmance, like withdrawal, can be accomplished without
disclosure of information protected by Rule 1.6, it is required when necessary for the lawyer to
avoid assisting a fraud on the tribunal.
[14] Paragraph (h) applies if the lawyer comes to know that a person other than the client
has engaged in misconduct in connection with the proceeding. Upon learning prior to the
paragraph (e) to promptly reveal the offense to the tribunal. The client’s interest in protecting the
wrongdoer is not sufficiently important as to override the lawyer’s duty of candor to the court and
to take affirmative steps to prevent the administration of justice from being tainted by perjury, fraud
or other improper conduct.
[15] Because jury tampering undermines the institutional mechanism our adversary system
of justice uses to determine the truth or falsity of testimony or evidence, paragraph (i) requires a
lawyer who learns prior to the completion of the proceeding that there has been misconduct by or
directed toward a juror or prospective juror must reveal the misconduct and the identity of the
perpetrator to the tribunal, even if so doing requires disclosure of information protected by Rule
1.6. Paragraph (i) does not require that the lawyer seek permission to withdraw from the further
representation of the client in the proceeding, but in cases in which the client is implicated in the
jury tampering, the lawyer’s continued representation of the client may violate Rule 1.7. Rule
1.16(a)(1) would then require the lawyer to seek permission to withdraw from the case.
[16]In cases in which the lawyer learns of the client’s misconduct after the termination of
the proceeding in which the misconduct occurred, the lawyer is prohibited from reporting the
client’s misconduct to the tribunal. Even though the lawyer may have innocently assisted the client
to perpetrate the offense, the lawyer should treat this information as the lawyer would treat
information with respect to any past crime a client might have committed. The client’s offense will
be deemed completed as of the conclusion of the proceeding. An offense which occurs at an earlier
stage in the proceeding will be deemed an ongoing offense until the final stage of the proceeding is
completed. A proceeding has concluded within the meaning of this Rule when a final judgment in
the proceeding has been affirmed on appeal or the time for an appeal has passed.
[17]These Rules apply to defense counsel in criminal cases, as well as in other instances.
However, the definition of the lawyer's ethical duty in such a situation may be qualified by
constitutional provisions for due process and the right to counsel in criminal cases. The obligation
of the advocate under these Rules is subordinate to any such constitutional requirement.
See Rule 1.0(c)
“Fraud” and “Fraudulent”See Rule 1.0(e)
“Knowingly,” “Known” and “Knows” See Rule 1.0(f)
“Material”See Rule 1.0(g)
“Reasonably Believes”See Rule 1.0(j)
“Tribunal”See Rule 1.0(m)
PROPOSED RULE 3.4
FAIRNESS TO OPPOSING PARTY AND COUNSEL
conceal a document or other material having potential evidentiary value. A lawyer shall not
counsel or assist another person to do any such act; or
based on an assertion that no valid obligation exists; or
diligent effort to comply with a legally proper discovery request by an opposing party; or
will not be supported by admissible evidence;
or
the culpability of a civil litigant or the guilt or innocence of an accused; or
to another party unless:
affected by refraining from giving such information.
appear as a witness by way of deposition or at trial or
(h) offer an inducement to a witness that is prohibited by law; or 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. A lawyer may advance, guarantee or acquiesce in the
payment of:
testifying; or
[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 a proceeding the commencement of which can be foreseen.
Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary
material generally, including computerized information.
[3] Although paragraph (f) broadly prohibits lawyers from taking extrajudicial action to
impede informal fact-gathering, it does permit the lawyer to request that the lawyer’s client, and
relatives or employees or agents of the client, refrain from voluntarily giving information to another
party. This is because such relatives and employees will normally identify their interests with those
of the client. See also Rule 4.2.
[4] With regard to paragraph (h), 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.
See Rule 1.0(f)
“Material”See Rule 1.0(g)
“Reasonable” and “Reasonably” See Rule 1.0(i)
“Reasonably Believes”See Rule 1.0(j)
“Tribunal”See Rule 1.0(m)
PROPOSED RULE 3.5
IMPARTIALITY AND DECORUM OF THE TRIBUNAL
prohibited by law;
with a judge, juror, or a member of the jury pool, prior to or
during a proceeding, except as permitted by law;
communication is prohibited by law or is reasonably likely to harass or embarrass the juror
or influence the juror’s actions in future jury service;
or
pursuant to the
authority of a tribunal.
[1] Many forms of improper influence upon a tribunal are proscribed by criminal law or
state or local rules of procedure. Others are specified in the Tennessee Code of Judicial Conduct,
with which an advocate should be familiar. For example, a lawyer shall not give or lend anything of
value to a judge, judicial officer or employee of a tribunal, except as permitted by Section (C)(4) of
Canon 5 of the Code of Judicial Conduct. A lawyer, however, may make a contribution to the
campaign fund of a candidate for judicial office in conformity with Section (B)(2) of Canon 7 of
the Code of Judicial Conduct.
[2] Paragraph (b) does not prohibit communicating with a judge on the merits of the cause
in writing if the lawyer promptly delivers a copy of the writing to opposing counsel and to parties
who are not represented by counsel. Oral communication is permitted upon adequate notice to
opposing counsel and parties who are not represented by counsel.
[3]A communication with or an investigation of the spouse, child, parent or sibling of a
juror or a member of the jury pool will be deemed a communication with or an investigation of the
juror.
[4] 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.
[5] Paragraph (e) prohibits a lawyer from engaging in conduct intended to disrupt a
deposition as well as a trial.
See Rule 1.0(i)
“Tribunal”See Rule 1.0(m)