Lawyers Must Not Lie, or Destroy or Suppress Evidence
A lawyer’s duty of candor impacts the way lawyers can present and handle evidence. Essentially, the duty requires lawyers to be honest, and straightforward when dealing with judges, juries, and legal proceedings. Let’s look at some of the ways this duty impacts a lawyer’s actions.
LAWYERS MAY NOT MISLEAD JUDGES OR JURIES
Lawyers cannot make false statements (of fact or law), or use “artifice”–which means clever methods, tricks, or deceptive means–to mislead a judge or a jury. This requirement is so important that it’s actually part of the California Business & Professions Code (Section 6068(d)). A lawyer who violates this rule isn’t just breaching his or her ethical duty–(s)he’s breaking the law.
LAWYERS MAY NOT PRESENT FALSE EVIDENCE OR SUBORN PERJURY
Lawyers may not knowingly allow a client, or any other witness, to offer false testimony. And this doesn’t just include lies the client may create. When interviewing witnesses, or preparing for trial, a lawyer cannot falsify evidence, suggest that a witness lie or conceal the truth (or instruct the witness to do so) or offer a witness any inducement or reward for testifying if the inducement or reward (or the manner in which it is offered) is against the law.
LAWYERS MAY NOT SUPPRESS, DESTROY, OR OBSTRUCT ACCESS TO EVIDENCE
Lawyers are forbidden to hide or suppress any evidence that either the lawyer or the client has a legal duty to produce, reveal, or share. This duty applies to both civil and criminal proceedings, although this duty (like all others) does not exist in a vaccuum; other laws and obligations (for example, a defendant’s Constitutional right against self-incrimination) also impact when information must, and need not, be disclosed or shared.
Lawyers cannot knowingly, or negligently, destroy or damage evidence. This includes (but is not limited to) acts like altering documents, deleting emails or other electronic files, or concealing the existence of important information, objects, and other evidence. Electronic evidence, in particular, may be subject to preservation under the California Code of Civil Procedure once litigation or another dispute resolution proceeding has been commenced.
Lawyers cannot wrongfully obstruct access to evidence (including witnesses), including (but not limited to) delaying discovery responses or refusing to comply with reasonable, legally permitted discovery requests.
The intentional or negligent withholding, destruction, or damaging of evidence is called spoliation, and in some situations, it is a legally punishable or actionable offense, in and of itself.
It’s important to note that the attorney client privilege does not provide an absolute shield against, or a defense to, the duty not to obstruct access to evidence. Even if a lawyer learns information or other evidence through communications that are protected by attorney-client privilege, the lawyer may still have to disclose the evidence itself in certain circumstances. This applies to both civil and criminal cases, and can be particularly important when the evidence is a physical object or document. A lawyer cannot refuse to disclose or produce the object, or the document, simply by stating that it was received as part of a privileged communication. While other procedural rules may help avoid disclosure or production of the evidence, attorney-client privilege alone may not suffice. (Please consult a specialist for an individual examination of the facts and circumstances, if you believe this situation applies to you, or to a case in which you participated; this brief overview does not examine all of the relevant laws that may apply.)
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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.
