Model Rule 3.4: Fairness to Opposing Party and Counsel

When it applies

This rule comes up whenever a lawyer handles evidence, interacts with witnesses (including paying them), responds to discovery requests, or argues before a jury. On the MPRE, it's tested through fact patterns involving destroyed documents, coached or paid witnesses, ignored discovery obligations, and improper closing arguments.

What the rule requires

• A lawyer shall not unlawfully obstruct another party's access to evidence or alter, destroy, or conceal material with potential evidentiary value.
• A lawyer shall not counsel or assist another person to do the same (e.g., directing a client to destroy documents).
• A lawyer shall not falsify evidence, or counsel or assist a witness to testify falsely.
• A lawyer shall not offer an inducement to a witness that is prohibited by law, though reasonable compensation for expenses and lost time, and a reasonable noncontingent fee for an expert, is permitted.
• A lawyer shall not knowingly disobey a tribunal's rules or an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.
• In pretrial procedure, a lawyer shall not make frivolous discovery requests or fail to make reasonably diligent efforts to comply with a proper discovery request from an opposing party.
• At trial, a lawyer shall not allude to matters not reasonably believed relevant or not supported by admissible evidence, assert personal knowledge of facts unless testifying, or state a personal opinion about credibility, guilt, liability, or the justness of a cause.
• A lawyer shall not request that a person other than a client refrain from voluntarily giving relevant information to another party, unless that person is a relative, employee, or agent of the client and the lawyer reasonably believes the person's interests won't be harmed by refraining.

Exceptions

• Reasonable compensation to witnesses for expenses and lost time, and reasonable noncontingent fees for expert witness services, is not an improper inducement.
• A lawyer may openly refuse to comply with a tribunal obligation if asserting that no valid obligation exists (this is not 'knowing disobedience').
• The prohibition on requesting non-clients to withhold information does not apply to relatives, employees, or agents of the client when the lawyer reasonably believes their interests won't be adversely affected.

How the MPRE tests Model Rule 3.4

• Students often forget that paying a fact witness contingent on outcome or based on the content of testimony is prohibited, while paying reasonable expenses and lost wages is fine.
• Questions blur the line between vigorous cross-examination or argument (permitted) and stating personal opinion about a witness's credibility or a party's guilt (prohibited).
• Students confuse spoliation issues under 3.4(a) with the broader duty of candor to the tribunal under Rule 3.3; 3.4 covers evidence/discovery fairness to the opposing side, not misrepresentations to the court itself.
• MPRE questions test whether advising a client on lawful document retention policies (before litigation is foreseeable) is different from destroying evidence once a duty to preserve has attached — the timing and knowledge matter.