Fair Competition in Advocacy

Fairness to Opposing Parties

Fair Competition in Advocacy

The adversary system leaves the gathering of proof to the parties, and Rule 3.4 of the Model Rules of Professional Conduct polices how they do it. Comment [1] states the premise: the evidence in a case is “marshaled competitively by the contending parties,” and fair competition is “secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.”¹ The rule itself takes the form of a list of things a lawyer shall not do.² Its first item sets the pattern. A lawyer shall not unlawfully obstruct another party’s access to evidence, shall not unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value, and shall not counsel or assist another person to do either.³

Nothing in the rule asks a lawyer to stop advocating. Professor Lon Fuller drew the line in terms that still frame the topic: partisan advocacy is a form of public service so long as it aids the process of adjudication, and it ceases to be one when it misleads, distorts, and obfuscates, making the deciding tribunal’s task “not easier, but more difficult.”⁴ Discovery is where that line gets tested. A plausible, legitimate objection to a discovery request is part of the adversarial process and reflects appropriate zealous advocacy. An obstructionist objection is another matter, because frivolous resistance cannot be called a “reasonably diligent effort” to comply with the request.⁵

The abuses that cross the line are concrete. A lawyer who seeks excessive discovery given what is at stake, makes boilerplate objections without particularizing their basis, answers evasively or incompletely, drives up the adversary’s costs until the case settles, or delays discovery to gain a tactical advantage is hindering adjudication. That lawyer also breaches the duty of loyalty to the procedures and institutions the adversary system serves.⁶ The limits come from several directions at once, since rules of procedure, ethics, and even statutes all restrict how the adversary system may operate during discovery.⁷

Rule 3.4(c) supplies one of those limits by requiring a lawyer to obey court rules, so a lawyer may not circumvent the boundaries the procedural rules place on discovery. Professors Hazard and Hodes and attorney Jarvis give an example. The Federal Rules of Civil Procedure set detailed protocols for discovering an opposing party’s expert witnesses and bar discovery of non-testifying experts except under exceptional circumstances. An informal, ex parte “debriefing” of the opposing party’s expert is therefore prohibited, at least by clear implication.⁸ A neighboring rule regulates contact with the other side more directly. Under Rule 4.2, a lawyer may not communicate about the subject matter of the representation with anyone the lawyer knows to be represented by counsel in the matter without that lawyer’s consent, so the dealing runs through the opponent’s lawyer.⁹

Losing the objection is not the ethical event, because both lawyers lost it. What separates them is what each did next. Zeal covers raising the objection and ends when the court rules. A good-faith objection that is dropped once the court decides is advocacy, and a lost objection followed by concealment is obstruction.

The sections that follow take the rule in three layers. The first protects the evidence and the witnesses. Rule 3.4(a) bars obstructing access to evidence and altering, destroying, or concealing it, and Rule 3.4(b) bars falsifying evidence, counseling or assisting a witness to testify falsely, and offering an inducement that the law prohibits.¹¹ The second layer governs procedure. Rule 3.4(c) requires obedience to tribunal rules, and Rule 3.4(d) forbids a frivolous discovery request and a failure to make reasonably diligent effort to comply with a legally proper request.¹² The third layer governs the courtroom. At trial, Rule 3.4(e) bars alluding to a matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, asserting personal knowledge of facts in issue except when testifying as a witness, and stating a personal opinion on the justness of a cause, a witness’s credibility, a civil litigant’s culpability, or an accused’s guilt or innocence.¹³