Can a lawyer destroy or withhold court-proceeding tapes the trial court has lost, when they are needed for an appeal?

Plain-English summary

The lawyer obtained tapes of court proceedings while representing a criminal defendant on appeal. The trial court said a tape of one relevant proceeding was lost or destroyed. The lawyer did not know whether that tape was among those received from the court, and intended to destroy the tapes or refuse to provide them to the court. The inquiry concerned the lawyer's ethical obligation to give the tapes to the court and the consequences of failing to do so.

The committee said it would not issue an opinion on a question regarding an action for which litigation is pending or which may be the subject of disciplinary action. It added that the proposed course of action would likely be a violation of RPC 3.3, 3.4, and 8.4. The committee noted the lawyer might wish to review the RALJ as recently amended, but said this is a mixed question of law and fact on which it could not give a more specific answer.

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 mentioned here. Washington's cited rules correspond to ABA Model Rules 3.3 (candor toward the tribunal), 3.4 (fairness to opposing party and counsel), and 8.4 (misconduct).

Common questions

Q: Can the lawyer destroy or withhold the court's tapes?

A: The committee said the proposed course of destroying the tapes or refusing to provide them would likely violate RPC 3.3, 3.4, and 8.4.

Q: Did the committee give a definitive ruling?

A: No. The committee said it would not issue an opinion because the matter involved pending litigation or possible disciplinary action, and that the question is a mixed one of law and fact.

Background and rules framework

The opinion identified RPC 3.3 (candor toward the tribunal), 3.4 (fairness to opposing party and counsel, including the prohibition on unlawfully altering, destroying, or concealing material with evidentiary value), and 8.4 (misconduct), corresponding to the like-numbered ABA Model Rules, as the rules the proposed conduct would likely violate. The committee declined a full opinion given the pending litigation and possible disciplinary exposure and pointed to the RALJ as a related but separate legal question.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.3 (candor toward the tribunal); Washington RPC 3.3
• ABA Model Rule 3.4 (fairness to opposing party and counsel); Washington RPC 3.4
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4

Other authority:

• Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ), as then recently amended

See also

• WA Ethics Op. 1724: Disclosing a Witness to the Other Side
• WSBA Ethics Op. 1209: Client Altered Evidence
• WA Ethics Op. 1250: Ex Parte Sentencing Candor

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=819

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1750
Year Issued: 1997
RPC(s): RPC 3.3; 3.4; 8.4
Subject: Duties toward tribunal; lawyer in possession of tapes of court proceeding needed for appeal that trial court has since lost or destroyed

[The lawyer obtained tapes of court proceedings as part of representing a criminal defendant in an appeal. The trial court said a tape of one relevant proceeding was lost or destroyed. The lawyer did not know whether that tape was among those he received from the court, and intended to destroy the tapes and/or refuse to provide them to the court.] Your recent ethical inquiry regards your ethical obligation to give certain tapes to the court and the consequences of failing to do so. You gave the tapes to your lawyer.

1. The Committee will not issue an opinion on a question regarding an action for which litigation is pending or which may be the subject of disciplinary action.

2. Your proposed course of action would likely be a violation of RPC 3.3, 3.4 and 8.4.

3. While you may wish to review RALJ as recently amended, this question is a mixed question of law and fact that we cannot give a more specific answer.