Can a lawyer advise or arrange for a person to hide or leave the state so that person won't be available as a witness in a pending case?

Plain-English summary

The inquiring attorney asked whether the Rhode Island Rules of Professional Conduct prohibit a lawyer, in the trial of a cause, from advising or causing a person to secrete himself or leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness in pending litigation.

The panel quoted Rhode Island Rule of Professional Conduct 3.4 ("Fairness to Opposing Party and Counsel"), which provides in pertinent part that a lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value, and shall not counsel or assist another person to do any such act; and shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

The panel took the position that it is improper for an attorney to advise or cause a person to secrete himself or herself or leave the jurisdiction for the purpose of making him or her unavailable as a witness in pending litigation. The panel concluded that such conduct violates Rule 3.4 because it amounts to the unlawful concealment of the testimony of a witness that may have potential evidentiary value.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 3.4 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer tell a witness to leave town to avoid testifying?

A: Under this opinion, no. The panel concluded it is improper and violates Rule 3.4 for a lawyer to advise or cause a person to leave the jurisdiction to be unavailable as a witness.

Q: Why does the panel treat this as a Rule 3.4 violation?

A: The panel reasoned that causing a witness to become unavailable amounts to the unlawful concealment of testimony of potential evidentiary value, which Rule 3.4 prohibits.

Q: Does it matter whether the lawyer advises or actively arranges the absence?

A: The panel addressed both, treating it as improper for a lawyer either to advise or to cause a person to secrete himself or leave the jurisdiction for that purpose.

Background and rules framework

The opinion applies Rule 3.4 (Fairness to Opposing Party and Counsel), corresponding to Model Rule 3.4. The panel quoted Rule 3.4(a), which bars unlawfully obstructing another party's access to evidence and unlawfully concealing material of potential evidentiary value (and counseling or assisting another to do so), and Rule 3.4(c), which bars knowingly disobeying an obligation under a tribunal's rules. The panel treated causing a witness's unavailability as the unlawful concealment of evidence.

Citations and references

Rules of Professional Conduct:

• MR 3.4 (fairness to opposing party and counsel)
• RI RPC 3.4(a) (obstructing access to or concealing evidence)
• RI RPC 3.4(c) (disobeying an obligation under a tribunal's rules)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 95-19: Volunteering a Client's Address
• RI EAP Op. 95-44: Lawyer-Witness May Prepare Discovery

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2091-09.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #91-9, REQUEST #141
Issued February 20, 1991

An attorney seeks Panel advice as to whether the Rhode Island Rules of Professional Conduct prohibit a lawyer, in the trial of a cause, from advising or causing a person to secrete himself or leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness in the pending litigation.

Rhode Island Rule of Professional Conduct 3.4 provides in pertinent part:

FAIRNESS TO OPPOSING PARTY AND COUNSEL

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; ...

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

The Panel takes the position that it is improper for an attorney to advise or cause a person to secrete him/herself or leave the jurisdiction for the purpose of making him/her unavailable as a witness in pending litigation. The Panel believes such conduct violates Rule 3.4 because it amounts to the unlawful concealment of the testimony of a witness which may have potential evidentiary value.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.