Ezel / Ethics Opinions / SBAND

May a lawyer withhold otherwise discoverable statements and photographs until a defendant’s deposition?

Short answer The committee declined to interpret the civil discovery rules. It said a lawyer who violates those rules by omitting requested documents from a certified discovery response would also violate North Dakota Rules 3.4(a) and (d).
Bar
SBAND
Issued
September 26, 1995
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1995. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The requesting lawyer held statements and surveillance photographs that plaintiffs wanted to reserve for rebuttal if the defendant denied certain facts in a deposition. A broad discovery request sought statements and surveillance material.

The committee said Rule 3.4 prohibits obstructive discovery tactics, but treated the timing and scope of production as a civil-procedure question. If the requested documents had to be included and the lawyer certified a response omitting them, the opinion said both Rule 26(g) consequences and ethics-rule violations would follow.

Currency note

This opinion was issued in 1995, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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, deadline, or requirement.

Common questions

Q: Did the committee set a production date?

A: No. It said determining when and how to disclose the material required applying the civil discovery rules, which it did not interpret.

Q: What ethics result did the committee identify?

A: A response that violates the discovery rules by omitting responsive documents would also violate Rules 3.4(a) and (d), according to the opinion.

Background and rules framework

The opinion applies North Dakota Rules 3.4(a), 3.4(d) to the stated facts.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 3.4(a).
  • North Dakota Rule 3.4(d).

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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