…more on professional responsibility

First, I think plaintiff’s lawyer violated Rule 1.3 requiring diligence with respect to plaintiff’s expert examining the light switch. A reasonable investigation and one meeting any standard of competence or diligence would require that the expert do more than flip the switch. He should have taken it apart and examined it more closely.

Between the defendant lawyer’s first expert examining the switch and the second expert examining the switch, the switch changed color, and defendant or defendant’s lawyer is most likely responsible. This altering of evidence violates Rule 3.4(a), which proscribes a lawyer from unlawfully altering or destroying evidence or counseling another person to do the act.

Defendant lawyer did not violate the Rules by telling the expert not to take notes or write anything. However, in refusing to turn over the file and photographs that defendant’s first expert made, defendant lawyer violated Rule 3.4(a) and possibly (c). Defendant lawyer hired the expert as a testifying expert, so all of that expert’s work is discoverable and plaintiff’s discovery request was sufficiently specific to cover defendant’s first expert’s work. Defendant lawyer is unlawfully obstructing plaintiff’s access to evidence – 3.4(a), and if discovery rules are rules of the tribunal, he is knowingly disobeying an obligation under the rules of a tribunal – 3.4(c). In addition, the defendant lawyer’s response to the interrogatories violated Rule 3.1 regarding meritorious claims and contentions. His response is simply false; the first expert’s work is neither privileged nor attorney work-product, and the information itself is discoverable. The falsity of the response also violates Rule 4.1.

Defendant lawyer’s amended answer violates Rules 3.1 and 3.3(a) (1). Defendant’s amendment is frivolous. Defendant lawyer knows there is at least a chance that the switch caused plaintiff’s injury. Therefore, he knows the claim is not fraudulent. What is more, since he knows there is a chance the switch caused the injury, saying in his answer that plaintiff’s injury could not have been a result of electrical shock is a knowingly false statement to the court.

Defendant lawyer’s second expert’s testimony also presents a problem. Ordinarily it would not violate the Rules for defendant lawyer to call the second expert to testify that the switch was not defective. Lawyers can choose their experts based on who will testify in their favor. However, this is not an ordinary situation. The switch has mysteriously changed color, the lawyer has concealed the fact that the second expert examined a materially different switch, and the lawyer has concealed the first expert’s information. In sum I think this testimony violates Rule 3.3 for fraud on the court.

There is also a serious problem with defendant lawyer calling as witnesses two Motel 8 employees who testify that the switch was not changed after the accident. Defendant lawyer knows the switch was white in the beginning and then changed color to black. Having a witness testify to the contrary amounts to fraud on the court, a violation of Rule 3.3(a) (1) and (2), and (4) if oral testimony is considered evidence. This is a violation whether the lawyer or the client changed the switch; in either case, the lawyer knows the switch has been altered. It is also a violation whether the switch has been physically replaced with a different switch, or whether the switch has been painted to conceal the burn mark. Saying, ala Bill Clinton, that “changed” means only replaced and not altered will not save the testimony from violating the Rules.


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