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Ohio Legal Ethics Narrative

III ADVOCATE

3.4 RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

3.4:100 Comparative Analysis of Ohio Rule

3.4:101 Model Rule Comparison

Ohio Rule 3.4 differs substantively from the Model Rule in the following respects:

In division (d), the words "intentionally or habitually" have been added after "in pretrial procedure", and "motion or" has been added before the first "discovery request".

In division (e), the words "or by a good-faith belief that such evidence may exist," have been added after "admissible evidence".

Division (f) has been deleted.

A new division (g) has been added; it prohibits a lawyer from advising or causing a person to hide or leave the jurisdiction so as to become unavailable as a witness (tracking former OH DR 7-109(B)).

3.4:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.4(a): DR 7-102(A)(8) & DR 7-109(A); EC 7-27.

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.4(b): DR 7-102(A)(6) & 7-109(C); EC 7-26 & 7-28.

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.4(c): DR 7-106(A).

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.4(d): DR 7-106(C)(7); EC 7-25.

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.4(e): DR 7-106(C)(1) & (4); EC 7-24. [The listing should also include DR 7-106(C)(3).]

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.4(g): OH DR 7-109(B); EC 7-27.

3.4:103 Overview

As stated in Ohio Rule 3.4 cmt. [1],

[t]he procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. However, a lawyer representing an organization, in accordance with law, may request an employee of the client to refrain from giving information to another party. See Rule 4.2, Comment [7].

These prohibitions are set forth in Ohio Rule 3.4.

While the terms "zealous" and "zealously" are not found in the Ohio Rules -- indeed, the terms have been expressly rejected, see the Ohio Code Comparison to Rule 1.3 -- they were very much present in characterizing the lawyer's commitment to his or her client's cause in the former OHCPR. (See Canon 7 ("A lawyer should represent a client zealously within the bounds of the law"); OH EC 7-1 ("Zealous representation"); OH DR 7-101 ("Representing a client zealously")). Nevertheless, there were numerous instances in the Code where a line was drawn to demarcate the "bounds of the law" beyond which zealousness could not go. OH DR 7-102(A), 7-106(A) and (C), and 7-109 (the OHCPR counterparts to Ohio Rule 3.4) were examples of such limitations. See, e.g., Toledo Bar Ass'n v. Batt, 78 Ohio St.3d 189, 192, 677 N.E.2d 349, 352 (1997) ("We recognize that an attorney must zealously represent his client, but we also recognize that an attorney has a duty to be civil to opposing counsel and the court. Respondent's bullying tactics toward witnesses, opposing counsel, and the board . . . have no place in our jurisprudence.").

It should be further noted, in the context of "fairness" to opposing parties and counsel, that there are in Ohio a number of documents dealing with the subject of professionalism, which, in significant part, are designed to encourage a renewal of lawyer civility in dealing with others in a professional capacity. See, e.g., the Statement on Professionalism, issued by the Ohio Supreme Court on February 3, 1997, Gov Bar R, App. V (referring to "dignity, integrity, and honor"; noting a "diminishing of courtesy and civility among lawyers in their dealings with each other"); A Lawyer's Creed, id. (in which the lawyer offers "fairness, integrity, and civility" to opposing parties and their counsel); A Lawyer's Aspirational Ideals, id. (aspiring to cooperation with opposing counsel, including courtesy and civility in all communications and the avoidance of "rudeness and other acts of disrespect" in depositions and similar meetings). See also former OH EC 1-5, which noted, inter alia, that a lawyer "should be temperate and dignified."

Nor should the oath of office taken on induction to the Bar of Ohio be forgotten on this subject. In it, each applicant accepted for admission commits to "conduct myself with dignity and civility and show respect toward judges, court staff, clients, fellow professionals, and all other persons." Gov Bar R I 8.

See section 0.1:102.

3.4:200 Unlawful Destruction and Concealment of Evidence

  • Primary Ohio References: Ohio Rule 3.4(a)
  • Background References: ABA Model Rule 3.4(a)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.47, 7.140-7.142
  • Commentary: ABA/BNA § 61.702; ALI-LGL §§ 118, 119; Wolfram § 12.3

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.47, 7.140-7.142 (1996).

Suppression in general: Ohio Rule 3.4(a) attempts to ensure that lawyers do not unfairly inhibit the access of other parties to important evidentiary information pertaining to a matter. See Rule 3.4 cmts. [1] & [2]. To this end, the Rule prohibits a lawyer from suppressing evidence that the lawyer has a legal obligation to reveal or produce. Under the former OHCPR, this concern was addressed in OH DR 7-109(A). See also OH DR 7-102(A)(3).

Suppression of evidence: Rule 3.4(a), substantively identical to MR 3.4(a), states that a lawyer shall not "unlawfully obstruct another party's access to evidence, unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act." This provision applies only when two conditions are met. First, the lawyer's conduct must involve the suppression of evidence, by obstructing another party's access to same, by altering, destroying, or concealing material that may have evidentiary significance, or by assisting others to do any of the above. Second, these actions must be taken "unlawfully" -- i.e., the conduct prevents other parties from obtaining evidence they have a legal right to have, pursuant to court order, subpoena, discovery request, or other legally enforceable obligation.

With respect to the second prong of the test, it would appear to be settled under Rule 3.4(a) that an actual legal obligation to produce must be present. As is stated in ABA, Annotated Model Rules of Professional Conduct 325 (6th ed. 2007) (commentary):

Rule 3.4(a) does not impose upon a lawyer a duty to volunteer all relevant information. The Rule prohibits a lawyer from concealing potential evidence "unlawfully." Here, "unlawfully" is a key term, suggesting that a lawyer who conceals evidence would violate the Rule only if the lawyer already has some obligation to disclose it, such as if the evidence is subject to a discovery request to which no objection has been made, or is the fruit or instrumentality of a crime and the lawyer is required by law to turn it over to law enforcement officials.

Consistent with this reading, Ohio Supreme Court authority under the former OHCPR made an existing legal obligation a prerequisite. Thus, in  In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000), the Court found support in OH DR 7-109(A) for its conclusion that the lawyer in question was legally obligated to comply with a grand-jury subpoena ordering the relinquishment of a letter written by his client. The case is further discussed on this point in section 1.6:380. Accord Disciplinary Counsel v. Tomlan, 118 Ohio St.3d 1, 2008 Ohio 1471, 885 N.E.2d 895 (failure to reveal “any and all” estate assets in answer to interrogatories and in testimony under oath in probate court; such concealment of evidence that respondent had duty to reveal violated DR 7-109(A)); Cincinnati Bar Ass'n v. Marsick, 81 Ohio St.3d 551, 553, 692 N.E.2d 991, 992 (1998) (with respect to suppression of relevant, nonconfidential information when responding to plaintiff's interrogatory requests specifically inquiring about the existence of post-accident interviews and knowledge of anyone on the scene shortly after the accident, lawyer's failure, in answering interrogatory, to disclose statement obtained from tow-truck driver, who arrived on scene after collision, violated, inter alia, OH DR 7-109(A); six-month suspension imposed. "A discovery request raises an obligation to produce the evidence sought when it is relevant and not privileged. Concealing evidence that is clearly requested is tantamount to deceiving both opposing counsel and the court.").

The need to meet both prongs of the test before a violation would lie in Ohio under the Code was also illustrated in a Cleveland Bar Association opinion addressing counsel conduct directed toward altering medical reports to be exchanged in the discovery context. Cleveland Bar Ass'n Op. 147 (Apr. 24, 1981). If a party undergoes a court-ordered mental or physical examination under OH Civ R 35, the examiner submits a written medical report to the party requesting the examination. The party examined, in turn, has a right to a copy of that report upon request. The bar association warned that any request by the lawyer for the party who sought the examination, asking the examining doctor to revise the written report to exclude certain matters, might constitute suppression of evidence that the lawyer had a legal duty to produce, thereby violating former OH DR 7-109(A). In contrast, the opinion noted, a lawyer may ask the client's own expert physician to delete certain matters from the expert's report, for tactical reasons, if the information is not material and its omission does not in any way make the report misleading, because there is no legal obligation to reveal or produce the report in a particular form. To go further, however, and request that the doctor destroy earlier versions of the medical reports would violate this rule, since the doctor may have a legal obligation to produce the earlier report as part of discovery. In the bar association's opinion, such action also might violate ORC 2921.12, a third-degree felony, as well as OH DR 7-102(A)(7), which prohibited a lawyer from counseling or assisting a client in conduct the lawyer knows to be illegal or fraudulent.

Because the legal obligation to produce or reveal evidence flows from criminal law, court order, or discovery request, failure to comply can have consequences outside the disciplinary process. Such conduct may violate the criminal law, ORC 2921.12(A)(1); ORC 2913.42(A)(1); ORC 2921.32(A)(4), and can result in discovery sanctions, OH Civ R 37, as well as citation for contempt. See In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000). And allegations that opposing counsel destroyed evidence can also result in opposing counsel's having to withdraw from representation in the matter. See Mauzy v. Kelly Servs., Inc., 75 Ohio St. 3d 578, 591, 664 N.E.2d 1272, 1282 (1996).

In addition, improper conduct with respect to evidence may give rise to tort liability for spoliation of evidence. In Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 29, 615 N.E.2d 1037, 1038 (1993), the Court summarized the doctrine in the following terms:

A cause of action exists in tort for interference with or destruction of evidence; . . . the elements of a claim for interference with or destruction of evidence are (1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's acts . . . .

In the language of the Court, a cause of action exists for "interference with or destruction of evidence," one of the elements of which is "willful destruction of evidence." Id. Given this ambiguity ("interference with or destruction"), there has not been unanimity in subsequent decisions as to the scope of the tort. Compare, e.g., Tate v. Adena Reg. Med. Ctr., 155 Ohio App.3d 524, 2003 Ohio 7042, 801 N.E.2d 930 (Ross) (reading Smith as requiring destruction; rejecting plaintiffs' argument that interference with or concealment of evidence was sufficient); Pratt v. Payne, 153 Ohio App.3d 450, 2003 Ohio 3777, 794 N.E.2d 723 (Montgomery) (reading Smith as requiring destruction); McGuire v. Draper, Hollenbaugh & Briscoe Co., L.P.A., 2002 Ohio 6170 (App. Highland) (same); White v. Ford Motor Co., 142 Ohio App.3d 384, 386, 755 N.E.2d 954, 956 (Franklin 2001) (same), with Drawl v. Cornicelli, 124 Ohio App.3d 562, 566-68, 706 N.E.2d 849, 851-52 (Lake 1997) (reading Smith as covering destruction, alteration, or concealment). Even though the decided majority of intermediate appellate decisions read the Smith decision narrowly, note that in Moskovitz v. Mt. Sinai Medical Center, 69 Ohio St.3d 638, 650, 635 N.E.2d 331, 342 (1994), the Supreme Court quoted the interference or destruction language from Smith; it then proceeded to hold that alteration of evidence need not be dealt with in a separate spoliation tort claim like that in Smith, but can also be addressed by an award of punitive damages, even if the actual damages in the case do not flow from the alteration itself, as would be required in the separate spoliation claim recognized in Smith. A more recent Supreme Court case touching on the issue, Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d 488, 756 N.E.2d 657 (2001), again refers to misconduct broader than the willful destruction prerequisite of Smith. Justice Cook's dissent analyzes the inconsistency present in the Smith language,  id. at 493, 494-96 & n.3, 756 N.E.2d at 661, 662-63 & n.3.

Overall, OH DR 7-109(A) was quite similar to former OH DR 7-102(A)(3) (concealing or knowingly failing to disclose that which the law requires to be disclosed). Thus, as the Court held in Marsick, conduct that violated OH DR 7-109(A) was likely to violate OH DR 7-102(A)(3) as well. In re Original Grand Jury is consistent with this analysis. See 89 Ohio St.3d at 549, 733 N.E.2d at 1140 (citing OH DR 7-102(A)(3) and OH DR 7-109(A) in support of its conclusion that the lawyer was under a legal obligation to turn over physical evidence (letter written by his client)).

Concealing or knowingly failing to disclose that which the law requires to be disclosed: Former OH DR 7-102(A)(3) provided that "[i]n his representation of a client, a lawyer shall not conceal or knowingly fail to disclose that which he is required by law to reveal." The phrase "conceal or knowingly fail to disclose," appeared to limit the application of this provision to intentional conduct; therefore, an attorney's negligent failure to disclose something required to be revealed by law did not fall within this provision. See Am. Bar Found., Annotated Code of Professional Responsibility 312 (1979) (interpreting identical language in the ABA Code of Professional Responsibility).

A number of cases employing former 7-102(A)(3) involved the failure to disclose documents or other potential evidentiary material, and thus would presumably fall under the Rule 3.4(a) prohibition. See, e.g., Office of Disciplinary Counsel v. O'Leary, 67 Ohio St.3d 425, 619 N.E.2d 410 (1993) (concealment of estate records and later refusal to turn them over to probate court); Cincinnati Bar Ass'n v. Lowery, 58 Ohio St.3d 72, 567 N.E.2d 1038 (1991) (failure to disclose decedent's most recent will to probate court). Note that the first portion of 3.4(a) is directed at obstruction of "another party's" access to evidence, whereas the prohibition against alteration, destruction, or concealment of evidence is not so limited. This reading is consistent with the discussion of MR 3.4(a) (substantively identical to the Ohio Rule) in ABA, Annotated Model Rules of Professional Conduct 322-24, (6th ed. 2007) (commentary).

Violations of OH DR 7-102(A)(3) were not restricted to the probate context. For example, a lawyer who knowingly withheld relevant information from a bar association's Unauthorized Practice of Law Committee and who had previously concealed from the court that his supposed "partner" in defending a criminal charge was not an attorney (indeed, the lawyer affirmatively represented that his "partner" was an attorney), was found to have violated OH DR 7-102(A)(3), among other violations. Columbus Bar Ass'n v. Culbreath, 88 Ohio St.3d 271, 725 N.E.2d 629 (2000). In Dayton Bar Ass'n v. Callahan, 36 Ohio St.3d 179, 522 N.E.2d 542 (1988), the respondent was found to have violated, among other rules, OH 7-102(A)(3) in knowingly failing to disclose the true purpose of his clients' marriage when he submitted forms on their behalf to the Immigration and Naturalization Service. (This conduct violated 18 USC §§  1001, 1002 (2000) as well.)

An egregious example of violation of former 7-102(A)(3) in the criminal context occurred in Office of Disciplinary Counsel v. Wrenn, 99 Ohio St.3d 222, 2003 Ohio 3288, 790 N.E.2d 1195. In Wrenn, at a pretrial hearing in a juvenile sexual-assault case, the respondent, an assistant county prosecutor, stood by and agreed that the state was still waiting on semen test results, even though he had previously been informed verbally that the Bureau of Criminal Investigation had determined that the semen was not that of the defendant, but of the twelve-year-old victim. (Respondent also interviewed the victim privately later that day, at which time the boy changed his story and conceded that the semen was his, not defendant's. Respondent advised neither defense counsel nor the court of this information.) With respect to this flagrant violation OH DR 7-102(A)(3) (and three other disciplinary rules), the Court had this to say:

Here, respondent knew that the DNA testing had been completed and that it was not Derr's [defendant's] semen on the victim's shirt. The fact that the information was not yet provided in the form of a written report does not negate respondent's duty to disclose the information. In addition, the respondent knew that the victim had changed his story about the source of that semen and neglected to tell Derr's counsel. Whether or not the DNA test results were implicated in the plea actually negotiated, the credibility of the victim certainly was an issue. Respondent's failure to disclose the information before the first plea was inexcusable and undermined the integrity of the criminal justice system. The failure to disclose this information violated four Disciplinary Rules and warrants the imposition of sanctions.

Id. at ¶ 23. Despite the Court's strong language, Wrenn received only a stayed six-month suspension. Chief Justice Moyer, joined by Justice Pfiefer, would have imposed the sanction with no stay. For further discussion of the sanction/mitigation aspect of the Wrenn case, see section 8.4:400, at "Misconduct in the judicial process."

To the extent criminal statutes involving suppression of evidence apply to attorneys, failure to comply with them would violate Rule 3.4(a). See generally ORC 2921.32 (obstructing justice). An interesting case in which respondent was convicted of obstruction of justice for false answers to the police as to the whereabouts of the friend who was living with him is Office of Disciplinary Counsel v. Hastie, 29 Ohio St.3d 28, 505 N.E.2d 261 (1987). Despite the fact that there is no indication that these actions were taken "[i]n his representation of a client," respondent was found to have violated OH DR 7-102(A)(3), among other provisions. Other criminal-reporting statutes may come into play here as well, see, e.g., ORC 2921.22 (failure to report a crime); ORC 2921.23 (failure to aid law-enforcement officers), although their application to the client-lawyer relationship often is unclear. See generally ORC 2921.22(G)(1) (limited exception to crime reporting where revelation would violate attorney-client privilege). See also section 1.6:320.

Conduct that violated OH DR 7-102(A)(3) also frequently violated OH DR 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation) and OH DR 1-102(A)(5) (prohibiting conduct prejudicial to the administration of justice). See Rule 8.4(c) & (d) and sections 8.4:400-:500. An example of conduct violative of all three provisions is Cincinnati Bar Ass'n v. Lowery, 58 Ohio St.3d 72, 567 N.E.2d 1038 (1991) (concealment of decedent's will and misrepresentation of identity of heirs at law).

3.4:210 Physical Evidence of Client Crime

Comment [2] notes as follows with respect to such physical evidence:

A lawyer is permitted to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, the lawyer is required to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.

Rule 3.4 cmt. [2]. See, to the same effect, 2 Restatement (Third) of the Law Governing Laywers § 119 (2000).

The leading case in Ohio on this issue probably is In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000), discussed at sections 1.6:380 and 3.4:200. See also Charles W. Wolfram, Modern Legal Ethics § 12.3.5, at 645-46 (1986).

3.4:300 Falsifying Evidence

  • Primary Ohio References: Ohio Rule 3.4(b)
  • Background References: ABA Model Rule 3.4(b)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.50, 7.143.
  • Commentary: ABA/BNA § 61:705; ALI-LGL §§ 117, 118; Wolfram § 12.3

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.50 (1996).

Rule 3.4(b) prohibits a lawyer from falsifying evidence, counseling or assisting a witness to testify falsely, or offering to a witness an inducement that is prohibited by law. Such behavior may also subject the lawyer to criminal penalties for tampering with evidence. See ORC 2921.12(A)(2) ("No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall . . . [m]ake, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead.").

Violations of the analogous disciplinary rule (OH DR 7-102(A)(6)) under the former OHCPR were found where a lawyer:

  • fabricated a new, purportedly timely-filed, document after missing the deadline to refile a worker’s compensation claim, Disciplinary Counsel v. Niermeyer, 119 Ohio St.3d 99, 2008 Ohio 3824, 892 N.E.2d 434;

  • advanced uncorroborated receipts and other suspect evidence in attempt to justify Medicaid reimbursement of client for unsubstantiated health-care expenses, Cleveland Bar Ass’n v. Mitchell, 118 Ohio St.3d 98, 2008 Ohio 1822, 886 N.E.2d 222;

  • created and filed falsified qualified domestic relations reports in which the entitlements of respondent's client were unilaterally increased and the signatures of opposing counsel and his client, the ex-husband, were forged, Office of Disciplinary Counsel v. Herman, 99 Ohio St.3d 362, 2003 Ohio 3932, 792 N.E.2d 1078;

  • created and filed knowingly false probate accounts in connection with an adoption matter, which accounts failed to disclose the payment of exorbitant fees to respondent, who represented therein that no such disbursements had been made, Stark County Bar Ass'n v. Hare, 99 Ohio St.3d 310, 2003 Ohio 3651, 791 N.E.2d 966 (numerous other violations, all of which resulted in disbarment);

  • suggested that the complaining witness in a domestic-violence action testify in a manner that had no basis in fact, Cincinnati Bar Ass'n v. Deardorff, 84 Ohio St.3d 85, 702 N.E.2d 59 (1998) (conduct also violated OH DR 1-102(A)(3)-(A)(5));

  • created false evidence of receipts for disbursements from an estate, Office of Disciplinary Counsel v. Stinson, 25 Ohio St.3d 130, 495 N.E.2d 434 (1986) (conduct violated other numerous provisions, including OH DR 1-102(A)(4) & (A)(6));

See also Office of Disciplinary Counsel v. Carpenter, 68 Ohio St.3d 99, 623 N.E.2d 1188 (1993) (trustee's creation of false evidence concerning sale of real estate and balance in testamentary trust violated numerous provisions, including OH DR 7-102(A)(4) and (A)(6)). Compare Findlay/Hancock County Bar Ass'n v. Filkins, 90 Ohio St.3d 1, 734 N.E.2d 764 (2000), where the Court rejected the Board's finding of violation and concluded, in a case turning entirely on the credibility of the witnesses, that the relator failed to prove by clear and convincing evidence that respondent had told his client to lie during a court-ordered psychological evaluation.

In cases that turn in part on a client's state of mind, the lawyer has substantial leeway in the development and preservation of supporting evidence, because it often is difficult to be certain as to the client's state of mind at the time of the events that are the subject of the dispute. As it was put in former OH EC 7-6, the lawyer "should resolve reasonable doubts in favor of his client." Id.

3.4:310 Prohibited Inducements

The material in this section is excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.143 (1996).

As noted in section 3.4:300, Rule 3.4(b) also regulates payments made to witnesses. Whether a particular payment is permissible depends on the reason for the payment, the classification of the recipient as a lay witness or an expert witness, and the method used to compute the payment.

While it is not improper to pay a witness's reasonable expenses or to compensate an expert witness on terms permitted by law, it is improper to pay a lay witness a fee for testifying. Rule 3.4 cmt. [3]. It is also improper to pay an expert witness a contingent fee. Id.

As the text of the Rule makes clear, an improper inducement need not be actually paid for a violation to be found. The mere "offer" of such an inducement is sufficient. Nor need the compensation be monetary. For example, providing free legal services in exchange for testimony was considered impermissible under the former disciplinary rule, OH DR 7-109(C). Cleveland Bar Ass'n Op. 143 (June 21, 1979). An obvious purpose of this requirement is to encourage truthful witness testimony by forbidding financial inducements that might tempt witnesses to alter their testimony in exchange for compensation. Even if the witness is crucial to the case and will refuse to testify without compensation, the lawyer cannot participate in the provision of compensation beyond that allowed in the Rule. Id. In short, "a [lay] witness may not be paid for 'telling the truth . . . ." ABA, Annotated Model Rules of Professional Conduct 328 (6th ed. 2007) (commentary).

Paying a complaining witness so that she would not testify in two criminal actions, which conduct resulted in both actions being dismissed, also was held to violate former 7-109(C). Office of Disciplinary Counsel v. Melamed, 62 Ohio St.3d 187, 580 N.E.2d 1077 (1991) (conduct also violated OH DR 1-102(A)(3)-(A)(5) and 5-101(A)). The situation can be characterized as one in which payment is contingent on the content of the witness's testimony; here the testimony was her silence. If the lawyer's conduct rises to the level of bribery, it is of course subject to the criminal law as well. ORC 2921.02(C). See, e.g., State v. Jurek, 55 Ohio App.3d 70, 562 N.E.2d 941 (Cuyahoga 1989) (bribery conviction upheld where lawyer offered complaining witness $1,000 to request that charges against lawyer's client be dropped). See also United States v. Blaszak, 349 F.3d 881 (6th Cir. 2003), affirming a conviction under 18 USC § 201(c)(3) (seeking payment for testimony). While not mentioning OH DR 7-109(C), the federal court did state as follows:

we find it simply incredible that a licensed attorney and member of the Ohio bar would claim that he believed it lawful to accept $500,000 in exchange for non-expert truthful testimony.

349 F.3d at 887. Interestingly, in the follow-up disciplinary action, Blaszak apparently was not charged with violating OH DR 7-109(C). Disciplinary Counsel v. Blaszak, 104 Ohio St.3d 330, 2004 Ohio 6593, 819 N.E.2d 689 (various rules violated, including OH DR 1-102(A)(4), but because of "overwhelming evidence of mitigation," two-year suspension imposed, with credit for time (more than two years) during which respondent was under interim suspension for having been convicted of a felony).

While Rule 3.4(b) prohibits paying an occurrence witness anything other than amounts needed to defray the cost of serving as a witness, expert witnesses may be paid a reasonable fee for their professional services in serving as an expert. Rule 3.4 cmt. [3]. An expert's fee cannot be made contingent on the outcome of the case. Id. The OSBA opined that the former OHCPR did not bar entering into a contingency-fee arrangement with a lay agency that assisted in finding expert witnesses to testify. Ohio State Bar Ass'n Informal Op. 80-7 (July 17, 1980).

See section 3.3:430.

3.4:400 Knowing Disobedience to Rules of Tribunal

  • Primary Ohio References: Ohio Rule 3.4(c)
  • Background References: ABA Model Rule 3.4(c)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.98, 7.108
  • Commentary: ABA/BNA § 61:710, ALI-LGL § 105, Wolfram § 12.1

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.98, 7.108 (1996).

Rule 3.4(c) prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal, "except for an open refusal based on a good faith assertion that no valid obligation exists." As expressly stated, this provision does not prohibit a lawyer from challenging, in good faith, the validity of such an obligation. See also sections 3.1:500 and 3.5:400. And, as not quite expressly stated, disobedience of the "obligation under the rules of a tribunal" includes court orders as well as the tribunal's "rules." See ABA, Annotated Model Rules of Professional Conduct 330-31 (6th ed. 2007) (commentary). (The Code analog, former OH DR 7-106(A), addressed the matter more directly: "standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding.") See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 30.7, at 30-11 (3d ed. 2001) (noting the change in language but concluding "there is no reason to think that the old rule was intended to be narrowed").

Examples of conduct found to violate former OH DR 7-106(A) included:

  • refusal to obey court orders, Ohio State Bar Ass'n v. McCray, 109 Ohio St.3d 43, 2006 Ohio 1828, 845 N.E.2d 509 (disobedience of order that proceeds from sale of client's house shall remain escrowed until further order of court; funds removed without respondent's obtaining such order; no legal or ethical right to do so, even though used to pay legal fees admittedly owing; Court expressly noted that this action could not "be described as a good-faith test of that order, id. at para. 17); Disciplinary Counsel v. LoDico, 106 Ohio St.3d 229, 2005 Ohio 4630, 833 N.E.2d 1235 (consistently ignoring court's rulings on admission of evidence and on scope of permissible examination); Office of Disiciplinary Counsel v. Armengau, 99 Ohio St.3d 55, 2003 Ohio 2465, 788 N.E.2d 1068 (violation of pretrial order limiting respondent's cross-examination of confidential police informant); Cincinnati Bar Ass'n v. Stidham, 87 Ohio St.3d 455, 721 N.E.2d 977 (2000) (respondent obtained check from executor in payment of fees in violation of local rule of probate court that attorney fees are not to be paid until final account prepared for filing unless payment otherwise approved by court),

  • failure timely to comply with discovery orders, Cincinnati Bar Ass'n v. Sullivan, 65 Ohio St.3d 293, 603 N.E.2d 983 (1992) (habitual failure to comply with discovery orders caused entry of default judgment against client),

  • disregard of a restraining order, Stark County Bar Ass'n v. Osborne, 62 Ohio St.3d 77, 578 N.E.2d 455 (1991) (preparing quitclaim deed assigning client-husband's interest in the couple's house to mortgagee in defiance of restraining order), and

  • deliberately ignoring the granting of a motion in limine. Igo v. Coachman Indus., Inc. 938 F.2d 650 (6th Cir. 1991) (applying OHCPR).

Despite the different factual settings presented, each of these cases involved the disobedience of a court ruling, which warranted sanction. Depending on the exact circumstances involved, such conduct could also violate OH DR 1-102(A)(5) and (A)(6) (now Rule 8.4(d) & (h)) as prejudicial to the administration of justice and reflecting adversely on the lawyer's fitness to practice law, as well as provisions related to neglect of a client's cause in OH DR 6-101(A)(3) and OH DR 7-101(A) (now Rule 1.3). See, e.g., Cincinnati Bar Ass'n v. Sullivan, 65 Ohio St.3d 293, 603 N.E.2d 983 (1992) (conduct found to violate enumerated provisions as well as former OH DR 7-106(A)). See also Dayton Bar Ass’n v. Randall, 118 Ohio St.3d 408, 2008 Ohio 2709, 889 N.E.2d 535, discussed at the end of this section. In that case DR 1-102(A)(5)-(6) & 6-101(A)(3) were invoked; for reasons unknown the disregard of court rulings and orders was treated as a 7-106(C)(7) violation, rather than a violation of 7-106(A).

Former 7-106(A) also prohibited a lawyer from "advis[ing] his client" to disregard a standing rule of a tribunal or its order made in the course of a proceeding. See, e.g., Muskingum County Certified Grievance Comm. v. Greenberger, 108 Ohio St.3d 258, 2006 Ohio 790, 842 N.E.2d 1042 (advising client to keep daughter with him in Ohio, in contravention of order of Ohio court to return daughter to ex-wife in Florida). Again, the Rule is not explicit in including within the 3.4(c) prohibition advising a client to violate a court rule or order, but the Model Rule commentary states without reservation that this ("advising their clients to disobey . . . court orders") is covered as well. See ABA, Annotated Model Rules of Professional Conduct 330 (6th ed. 2007) (commentary).

Such behavior also is regulated outside the disciplinary system through a court's exercise of its contempt powers. See, e.g., In re Guardianship of Jadwisiak, 64 Ohio St.3d 176, 593 N.E.2d 1379 (1992) (lawyer held in contempt for failure to comply with probate court order to remit settlement proceeds). But cf. State v. Schiewe, 110 Ohio App.3d 170, 673 N.E.2d 941 (Wood 1996) (prosecutor's contempt citation for failure to follow court order to refrain from putting on repetitious testimony was overturned where compliance with the order would have been inconsistent with prosecutor's ethical duty to his client).

Finally, former OH DR 7-106(C)(7) required that lawyers not intentionally or habitually violate any established rule of procedure or evidence. The purpose of this rule was to maintain the integrity of the legal system, which could be tainted by an attorney's chronic or intentional violation of procedural or evidentiary rules. While this language as such has not been incorporated in division (c) of Rule 3.4, it would seem fairly to be encompassed by the prohibition against "knowingly disobey[ing] an obligation under the rules of a tribunal." (See the Task Force's Ohio Code Comparison, where former OH DR 7-106(C) is listed among the disciplinary rules that address the scope of Rule 3.4.) For example, under the former OHCPR, see Disciplinary Counsel v. LoDico, 106 Ohio St.3d 229, 2005 Ohio 4630, 833 N.E.2d 1235 (OH DR 7-106(C)(7) violated where, at bench conference, respondent intentionally spoke loudly enough for jury to hear him call witness a liar); Office of Disciplinary Counsel v. Donnell, 79 Ohio St.3d 501, 684 N.E.2d 36 (1997) (lawyer violated rule by giving orders to court, cross-examining his own witnesses, arguing with witnesses, and attempting to call opposing counsel as witness). Intentionally filing cases in courts where there is no colorable basis for venue would violate this provision. Cleveland Bar Ass'n Op. 126 (Apr. 30, 1976). So too would blatant and repeated violations of the basic rules of evidence.  State v. Cotton, No. C-950288, 1996 Ohio App. LEXIS 2634, at *21 (Ohio App. Hamilton June 26, 1996) (Painter, J., concurring; calling upon prosecutor to review OH DR 7-106(C)(7) before retrial in light of "rampant and egregious" prosecutorial misconduct in solicitating of inadmissible testimony of prior unsubstantiated accusations against the defendant).

Curiously, DR 7-106(C)(7), rather than 7-106(A), was invoked in Dayton Bar Ass’n v. Randall, 118 Ohio St.3d 408, 2008 Ohio 2709, 889 N.E.2d 535, even though the violation clearly involved “disregard … of … a ruling of a tribunal made in the course of a proceeding,” as stated in 7-106(A). There is no explanation provided as to why the case proceeded under 7-106(C)(7). (In its citation, the Court erroneously refers to (B)(7), rather than (C)(7); there is no DR 7-106(B)(7).)

3.4:500 Fairness in Pretrial Practice

  • Primary Ohio References: Ohio Rule 3.4(d)
  • Background References: ABA Model Rule 3.4(d)
  • Commentary: ABA/BNA § 61:709, ALI-LGL § 106, Wolfram § 12.4

Rule 3.4(d) precludes a lawyer, in pretrial procedure, from "intentionally or habitually mak[ing] a frivolous motion or discovery request or fail[ing] to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party."

Some of the relevant OHCPR cases have been discussed in the previous section (3.4:400), e.g., Cincinnati Bar Ass'n v. Sullivan, 65 Ohio St.3d 293, 603 N.E.2d 983 (1992) (disregard of discovery orders; OH DR 7-106(A) violation). In addition, see Columbus Bar Ass'n v. Finneran, 80 Ohio St.3d 428, 687 N.E.2d 405 (1997) (misconduct, including repeated flagrant failures to respond to discovery requests in multiple cases, resulted in indefinite suspension from practice of law for violation of, inter alia, OH DR 7-106(C)(7)).

Also, provisions barring concealment or suppression of evidence that the lawyer is legally obligated to reveal (see Rule 3.4(a) & cmt. [2]) can come into play at the pretrial stage. E.g., Cincinnati Bar Ass'n v. Marsick, 81 Ohio St.3d 551, 692 N.E.2d 991 (1998) (both OH DR 7-102(A)(3) and OH DR 7-109(A) violated by concealing relevant nonprivileged evidence clearly requested by interrogatories; such concealment "is tantamount to deceiving both opposing counsel and the court," id. at 553, 692 N.E.2d at 992). Concealment of evidence during discovery can also result in lawyer disqualification. See Royal Indem. Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 501 N.E.2d 617 (1986). See also Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 664 N.E.2d 1272 (1996) (charge that opposing counsel destroyed piece of documentary evidence during pretrial stage of case; as a result, opposing counsel moved to withdraw; motion granted).

Moreover, Ohio courts have the inherent power to deal with abuses arising in pretrial practice such as discovery. See Cincinnati Bd. of Educ. v. Armstrong World Indus., Inc., No. C-910803 1992 Ohio App. LEXIS 5465 (Hamilton Oct. 18, 1992) (where OH Civ R 37 sanctions unavailable in absence of motion to compel, trial court nevertheless had inherent authority to impose sanctions for discovery abuse consisting of bad-faith misrepresentation in interrogatory answers; argument that "the trial court lacked the authority to award sanctions for discovery abuse except as specifically provided in the civil rules" expressly rejected, id. at *4).

3.4:600 Improper Trial Tactics

  • Primary Ohio References: Ohio Rule 3.4(e)
  • Background References: ABA Model Rule 3.4(e)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.102-7.103, 7.105-7.106
  • Commentary: ALI-LGL § 107, Wolfram § 12.1

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.102-7.103, 7.105-7.106 (1996).

Conduct before a tribunal - In general: OH DR 7-106(C) enumerated seven types of behavior that lawyers were prohibited from committing when appearing before a tribunal in a professional capacity. Three of the 7-106(C) prohibitions are now reflected in Ohio Rule 3.4(e) -- a lawyer shall not:

  • allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence or by a good-faith belief that such evidence may exist (former OH DR 7-106(C)(1), together with the good-faith belief test of State v. Gillard, 40 Ohio St.3d 226, 533 N.E.2d 272 (1988));

  • assert personal knowledge of facts in issue except when testifying as a witness (former OH DR 7-106(C)(3)); or

  • state a personal opinion as to the justness of a cause, the credibility of a witness, the cupability of a civil litigant, or the guilt or innocence of an accused (former OH DR 7-106(C)(4)).

Three other subsections of 7-106(C) are now covered by other Rules -- (C)(2) is treated in Rule 4.4(a) (see section 4.4:210); (C)(6) is dealt with in Rule 3.5(a)(5) (see section 3.5:400); (C)(7) is covered in Rules 3.4(c) and (d) (see 3.4:400). The other subdivision of former DR 7-106(C) ((C)(5)) (dealing with failure to comply with local custom or controversy or practice), which was not brought forward into the Model Rules, is not reflected in the Ohio Rules either. As stated in ABA, Annotated Model Rules of Professional Conduct 332 (4th ed. 1999) (Model Code Comparison), subdivision (C)(5) "was too vague to be a rule of conduct enforceable as law."

Conduct before a tribunal - Referring to matters that are irrelevant or unsupported by admissible evidence: As former OH EC 7-25 made clear, the rules of evidence and procedure governing a proceeding are in place to ensure a framework for fair and just decisions under the law. A conscious attempt by a lawyer to avoid the restrictions those provisions impose is unjustified.

To this end, Rule 3.4(e) prohibits a lawyer from alluding to matters she has no reasonable basis to believe are relevant, or that will not be supported by admissible evidence. If the lawyer does not know that admissible evidence exists on a relevant point, but has a "good-faith belief" that it may, the lawyer may proceed without violating this provision. Id. This aspect of Rule 3.4(e) incorporates the standard set forth in State v. Gillard, 40 Ohio St.3d 226, 533 N.E.2d 272 (1988) (affirming that cross-examiner may ask a question if examiner has good-faith belief that factual predicate for question exists). While the Rule does not say so expressly, it seems clear from the context that the terms "relevant" and "admissible evidence" as used here are intended to mean those concepts as used in the law of evidence. If there is no reasonable basis to believe a matter is both relevant and supported by admissible evidence, then there is no justification to present the matter before the trier of fact.

The analog to this portion of Rule 3.4(e) (OH DR 7-106(C)(1)) was not violated by presenting information that the trial court ultimately excluded as irrelevant, or for which admissible evidentiary support failed to develop. The focus was, and under the Rule is (at least in part), on conscious violation of the evidentiary rules, as indicated by the requirement that the lawyer is subject to sanction only if he "does not reasonably believe" the matter alluded to is relevant. This subjective standard is apparently intended to apply to the admissible-evidence issue as well; thus, division (e) states that the lawyer may not allude to any matter that will not be supported by admissible evidence "or by a good-faith belief that such evidence may exist," an addition not contained in MR 3.4(e).

The restriction applies "in trial." Thus, comments made at voir dire, during opening and closing statements, or during the presentation of evidence can violate the Rule. See Charles W. Wolfram, Modern Legal Ethics § 12.1.2, at 623-24 (1986).

Query whether the Rule also applies during discovery depositions, as did the former disciplinary provision, at least where "an attorney engages in subterfuge that intimidates a witness." Cincinnati Bar Ass'n v. Statzer, 101 Ohio St.3d 14, 2003 Ohio 6649, 800 N.E.2d 1117, at ¶ 16 (rejecting respondent's argument that the former "before-a-tribunal" requirement excluded depositions). As noted, the "before-a-tribunal" language has been replaced, in division (e), with "in trial." While one could argue in the abstract that these words are sufficiently broad to cover a trial's pretrial aspects, that argument is considerably more difficult to make in the face of division (d), which, in contrast to division (e), deals expressly with "pretrial procedure."

Applying former OH DR 7-106(C)(1), courts found that

  • displaying suggestively labeled tapes in front of deponent and referring to them during questioning, thereby implying that the respondent had recorded conversations of the deponent, when in fact the tapes were blank, Statzer, 101 Ohio St.3d 14, 2003 Ohio 6649, 800 N.E.2d 1117 ("Respondent's deceitful tactic intimidated her witness by creating the false impression that respondent possessed compromising personal information that she could offer as evidence," id. at ¶ 17; conduct violated both OH DR 1-102(A)(4) and 7-106(C)(1)),

  • making countless allegations of corruption against public officials in documents filed in court, for which respondent had no credible proof, Office of Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003 Ohio 4756, 796 N.E.2d 495, and

  • comments regarding a party's wealth, Igo v. Coachman Indus., Inc., 938 F.2d 650 (6th Cir. 1991) (counsel's repeated comments about defendant's wealth, made in attempt to promote large verdict, together with other misconduct, justified reversal of verdict and remand for new trial in civil action), or

  • socio-economic status, State v. Jacks, 63 Ohio App.3d 200, 578 N.E.2d 512 (Cuyahoga 1989) (reversing criminal conviction in part because prosecutor engaged in line of questioning about defendant's socio-economic status, whether defendant received welfare, and whether defendant was employed),

were unsupported by admissible evidence (Statzer, Baumgartner) or irrelevant (Igo, Jacks) and thus violated OH DR 7-106(C)(1).

So too would comments about matters excluded from the trial by an order granting a motion in limine. Igo v. Coachman Indus., Inc. 938 F.2d 650 (6th Cir. 1991) (such conduct might violate both OH DR 7-106(A) and (C)(1)).

Disparaging and untrue comments directed

  • at the court, Office of Disciplinary Counsel v. O'Leary, 67 Ohio St.3d 425, 619 N.E.2d 410 (1993) (filing two unsubstantiated affidavits of prejudice against judge as well as an unsubstantiated motion to disqualify),

  • at counsel, State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984) (prosecutor in closing argument falsely accused opposing counsel of suborning perjury; criminal conviction reversed), or

  • at parties, Igo v. Coachman Indus., Inc. 938 F.2d 650 (6th Cir. 1991) (wild and unsubstantiated allegations of dilatory conduct and unsavory motivations made at trial against defendant),

also violated OH DR 7-106(C)(1), because such comments were both irrelevant and unsupported by admissible evidence. Not surprisingly, promising a judge in open court that a client's relatives would all vote for the judge if he granted the client probation violated this provision as well. Office of Disciplinary Counsel v. Pagac, 72 Ohio St.3d 341, 650 N.E.2d 423 (1995).

One exception to former OH DR 7-106(C)(1) sometimes arose during the course of a criminal proceeding. The Board of Commissioners on Grievances and Discipline concluded that, given the time constraints in some criminal cases, a defense attorney was not required always to conduct a complete investigation of a case before filing a motion to suppress. Bd. of Comm'rs on Grievances & Discipline Op. 88-33, 1988 WL 508824 (Dec. 20, 1988). Consequently, a criminal defense attorney did not violate OH DR 7-106(C)(1) by filing a "blanket" motion to suppress on behalf of a client, even though technically this might involve alluding to a matter not supported by admissible evidence. Although not raised by the Board, if a subjective test applied, it might be argued that under these circumstances the lawyer did not meet the "no reasonable basis to believe" requirement, and thus the conduct was permissible.

Violations of this aspect of Rule 3.4(e) are subject to regulation not only through the disciplinary system, but also by the trial court through reprimands, evidentiary rulings, and, ultimately, contempt powers. See, e.g., In re Gonzalez, 70 Ohio App.3d 752, 591 N.E.2d 1371 (Cuyahoga 1990) (lawyer found in contempt for repeatedly asking irrelevant questions in face of court order not to do so). In addition, misconduct of this type can lead to a mistrial or reversal in both

  • civil cases, Igo v. Coachman Indus., Inc. 938 F.2d 650, 654 (6th Cir. 1991) (attorney misconduct in possible violation of number of provisions of the OHCPR, including OH DR 7-106(C)(1), "merits investigation by the Ohio State Bar Association" and warranted reversal of verdict and remand for new trial), and

  • criminal matters, State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984) (prosecutor's misconduct in violation of OH DR 7-106(C)(1) was of sufficient magnitude to warrant reversal of criminal conviction and remand for new trial).

Courts often address prosecutorial misconduct of this kind without reference to ethics rules. See, e.g., State v. Liberatore, 69 Ohio St.2d 583, 433 N.E.2d 561 (1982) (alluding to matters not in evidence in closing, and drawing inferences therefrom, was part of prosecutorial misconduct warranting reversal of criminal conviction); State v. Willard, 144 Ohio App.3d 767, 761 N.E.2d 688 (Franklin 2001) (prosecutor's improper remarks in closing argument warranted reversal for new trial).

Conduct before a tribunal - Asserting one's personal knowledge or opinion: As an advocate, the lawyer's role is to participate in the introduction of evidence and to argue the case based on that evidence. See Rule 3.4 cmt. [3A]. Statements by the lawyer as to personal knowledge of the facts in issue, other than when testifying as a witness (Rule 3.4(e)), or his or her personal opinion concerning the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of a criminal defendant, blur the line between the lawyer as an advocate and the lawyer as a witness and are prohibited. Id. See generally section 3.7:200. Such comments may be given disproportionate weight by the jury, either because of the special rapport the lawyer creates with them or because the comments are not subject to cross-examination as they would be if presented through sworn testimony.

Office of Disciplinary Counsel v. Donnell, 75 Ohio St.3d 501, 684 N.E.2d 36 (1997), is one of the rare cases applying former OH DR 7-106(C)(3) (personal knowledge of facts). In Donnell, "[o]n numerous occasions during the hearings [on motions relating to child custody and visitation rights], and despite admonishments by the judge, respondent without testifying asserted his personal knowledge of the facts," id. at 502, 684 N.E.2d at 37, thereby violating this provision. Another case invoking 7-106(C)(3) is Office of Disciplinary Counsel v. Armengau, 99 Ohio St.3d 55, 2003 Ohio 2465, 788 N.E.2d 1068, where respondent, in defending a client against charges of unauthorized use of a motor vehicle from a dealership, used his own personal experience with the dealership (where he posed as a potential customer) in cross-examining the sales person with whom he had dealt).

The line between permissible argument based on an analysis of the evidence and impermissible argument based on personal opinion is often unclear. Compare State v. Stith, No. 95 APA07-934, 1996 Ohio App. LEXIS 2443, at *13 (Franklin June 6, 1996) (finding prosecutor's closing remarks, including the following, on credibility of state's witnesses, not to violate former OH DR 7-106(C)(4):

"The credibility of these witnesses is unquestionable. The effect that this experience had upon them was obvious, and their desire to be as truthful as they could be was equally as obvious. Their testimony was corroborated by all of the physical evidence that was produced in this crime, as well."),

with State v. Alfieri, 132 Ohio App.3d 69, 724 N.E.2d 477 (Hamilton 1998) ("The prosecutor's act of personally vouching for the credibility of the state's witness ["David Baker is one of the best witnesses I've ever seen or had in courtroom. This is a man who was absolutely sincere, who was absolutely sure of what took place that day."] was an invasion of the province of the jury and was in direct violation of DR 7-106(C)(4) of the Code of Professional Responsibility."  Id. at 84, 85, 724 N.E.2d at 487), and State v. McComas, No. 93- CA-32, 1996 Ohio App. LEXIS 533, at *3 (Ohio App. Lawrence Feb. 15, 1996) (finding prosecutor's comments, quoted below, on credibility of testimony of victim and on guilt of defendant violated OH DR 7-106(C)(4):

"To me there's no question that this little girl sit [sic] on this witness stand and told the truth. I believe her, and I want to tell you why I believe her. I think you do believe her. . . . If there is a man guiltier than this man sitting right here, I don't know where he's at [sic].").

(bracketed material in opinion).

Nationally, most cases have allowed a lawyer to "suggest, urge, advocate, assert, and contend in his closing speech" as long as he does "not give his personal beliefs or state as factual matters not in evidence." E.g., United States v. Wilkins, 422 F.Supp. 1371, 1377 (E.D. Pa. 1976). See State v. Watson, 61 Ohio St.3d 1, 572 N.E.2d 97 (1991) (drawing these distinctions in prosecutorial misconduct context).

At times, however, lawyer conduct clearly goes over the line. For example, a lawyer who referred to defense evidence as "lies," "garbage," "garbage lies," a "smoke screen," and "a well conceived and well rehearsed lie" violated the former disciplinary rule.  State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984) (reversing criminal conviction for prosecutor's misconduct in violation of OH DR 7-106(C)(4)). See also State v. LaFreniere, 85 Ohio App.3d 840, 621 N.E.2d 812 (Lake 1993) (reversing criminal conviction, with citation to OH DR 7-106(C)(4), in part because of prosecutorial misconduct in making personal statements as to credibility in closing, including reference to accused's testimony as "a pack of lies"). Compare State v. Broyles, No. 93- A-1818, 1994 Ohio App. LEXIS 5537, at *13 (Ashtabula Dec. 9, 1994) (contrasting "pack of lies" statement in LaFreniere with use of words like "fabrication" and "truthful," which court found to be "neutral characterizations" of witness testimony that "did not cross that line from objective characterization of testimony into subjective opinion of the prosecutor's office").

Accusations or reminders about the penalties for perjury made by a prosecutor to a witness constituted implicit statements concerning the credibility of the witness, and thus were improper under OH DR 7-106(C)(4). State v. Halley, 93 Ohio App.3d 71, 637 N.E.2d 937 (Franklin 1994).

Another disciplinary case finding a violation of DR 7-106(C)(4) is Akron Bar Ass’n v. Markovich, 117 Ohio St.3d 313, 2008 Ohio 862, 883 N.E.2d 1046, where the respondent, representing his client in a criminal case, questioned witnesses in an “inappropriate” manner – presumably including his personal assertions as to witness credibility, although the opinion does not provide specific examples of same.

Transgressions of former OH DR 7-106(C)(4) can be found on the civil side as well. Thus, a lawyer who, in a products liability case, offered his personal opinion that, without doubt, the defendants were bitterly disappointed that there was no crash killing the plaintiff, because the product defect would have been destroyed in such a crash, also violated this provision. Igo v. Coachman Indus., Inc., 938 F.2d 650 (6th Cir. 1991) (interpreting OHCPR).

Courts often regulated misconduct of this kind without reference to the former OHCPR. On the criminal side, see, e.g., State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993) (criminal conviction overturned for massive prosecutorial misconduct, including expressing personal opinions about guilt of accused); State v. Willard, 144 Ohio App.3d 767, 761 N.E.2d 688 (Franklin 2001) (improper remarks in closing argument, including opinion that dependant "is guilty" and "this is what a man who rapes his daughter looks like," justified reversal of conviction). In civil litigation, see, e.g., Pesek v. Univ. Neurologists Ass'n, 87 Ohio St.3d 495, 721 N.E.2d 1011 (2000) (new trial granted, based in part on defense counsel's attack in closing argument on plaintiffs' counsel and the credibility of plaintiffs' expert witness; "[c]ounsel for [defendants] made various assertions and drew many inferences that simply were not warranted by the evidence. To attack counsel for [plaintiffs] and [plaintiffs'] expert witness was inexcusable, unprincipled, and clearly outside the scope of final argument." id. at 501, 721 N.E.2d at 1017, despite failure of plaintiffs' counsel to object to much of the diatribe); see also Verbanic v. Verbanic, 70 Ohio St.3d 41, 635 N.E.2d 1260 (1994) (new trial granted, based on litany of counsel misconduct, including allegations that the opposing party was "queer" and had AIDS).

Conduct before a tribunal - Intentional or habitual violation of established rules of procedure or evidence: See section 3.4:400.

Conduct before a tribunal – Other misconduct: Rule 3.4 is not the only Rule to deal with misconduct before the court. Others include:

  • Rule 3.1 -- advancing a frivolous claim or defense, see section 3.1:200;

  • Rule 3.5(a)(5) -- engaging in conduct intended to disrupt a tribunal, see section 3.5:400;

  • Rule 3.5(a)(6) -- engaging in undignified or discourteous conduct degrading to a tribunal, see section 3.5:400; and

  • Rule 4.4(a) – obtaining evidence from a witness by abusive means, see section 4.4:210.

3.4:700 Advising Witnesses Not To Speak To Opposing Parties

  • Primary Ohio References: see Ohio Rule 3.4(f) cmt. [1].
  • Background References: ABA Model Rule 3.4(f)
  • Commentary: ALI-LGL § 116(4), Wolfram § 12.4.2

The MR 3.4(f) prohibition that a lawyer shall not request a person other than client (unless that person is a relative, employee, or other agent of the client) to refrain from voluntarily giving relevant information to another party, has been deleted from the Ohio Rule, as has the related comment, MR 3.4 cmt. [4]. What remains is language added to Comment [1], permitting a lawyer representing an organization to request, if in accordance with law, an employee of the client to refrain from giving information to another party. Ohio Rule 3.4 cmt. [1].

3.4:800 Advising Potential Witness To Leave The Jurisdiction

  • Primary Ohio References: Ohio Rule 3.4(g)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.142

The material in this section is excerpted and adapted from Arthur F. Greenbaum, Laywer's Guide to the Ohio Code of Professional Responsibility § 7.142 (1996).

Ohio Rule 3.4(g), as did former OH DR 7-109(B), prohibits a lawyer from advising or causing a potential witness to hide or leave the jurisdiction of a tribunal to avoid being a witness. (There is no comparable Model Rule.) See, e.g., under the former OHCPR, Office of Disciplinary Counsel v. Slodov, 74 Ohio St.3d 618, 660 N.E.2d 1164 (1996) (OH DR 7-109(B) violated where counsel instructed client to leave the courthouse during a brief recess after giving direct testimony, but before cross-examination began, apparently to help force the court to rule on a motion to dismiss for lack of jurisdiction). For this Rule to apply, the lawyer's motive is the key, because a violation arises only when the lawyer's conduct is done "for the purpose of [the individual's] becoming unavailable as a witness." Such behavior not only has disciplinary consequences, but can lead to the vacation of a judgment tainted by such behavior. Kobayashi v. Koizumi, No. 80 AP-664, 1981 Ohio App. LEXIS 11002 (Franklin Feb. 2, 1981) (defendant's allegation that attorney advised defendant not to attend trial to avoid testifying raises OH Civ R 60(B) claim). If witness unavailability is the product of force or the unlawful threat of harm on the lawyer's part, criminal sanctions will lie. ORC 2921.03; ORC 2921.04(B). Similarly, criminal sanctions will lie if the lawyer, with the purpose of hindering a criminal prosecution, induces a witness "to withhold testimony or information or to elude legal process summoning the person to testify or supply evidence." ORC 2921.32(A)(4).

Note as well the related admonition added to Rule 3.4 cmt. [2], stating that "[a]pplicable law also prohibits the use of force, intimidation, or deception to delay, hinder, or prevent a person from attending or testifying in a proceeding."