Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Aggressive Advocacy or Suppression of Evidence?

Everyone knows an attorney has a duty to act as zealous advocates for his/her client’s interests.  But there are limits to how far an attorney can go to protect a client and improve their position in a case.  When attorneys’ advocacy results in the concealment of information the attorney or client has a duty to disclose, the attorney crosses the line and is in violation of California Rule of Professional Conduct 5-220. 

Rule 5-220 states that members of the bar “shall not suppress any evidence that the member or the member’s client has a legal obligation to reveal or produce.”  This Rule is consistent with the more general requirement that an attorney employ only those means that are consistent with the truth, as set forth in Business & Professions Code 6068(d).  In enforcing these rules, California courts have held that attorneys are obligated not only to protect their client’s interests, but also to respect the interests of other members of the bar, the judiciary, and the administration of justice.  (Kirsh v. Duryea (1978) 21 Cal.3d 303, 309.)

An attorney violates Rule 5-220 only if the attorney or client has a “legal obligation” to provide the evidence at issue.  Clients will undoubtedly look to their attorneys to advise them on what information must be produced.  Thus, it routinely falls to the attorney to make decisions regarding what evidence to disclose.  Attorneys practicing in federal courts must identify and disclose evidence in accordance with FRCP 26.  In state court actions, attorneys must decide what evidence is or is not responsive to an opposing party’s discovery requests and deposition questions.  And criminal prosecutors are held to have “a higher legal obligation to divulge ‘substantial material evidence favorable to the accused.’”  (Merrill v. Sup. Ct. (1994) 27 Cal.App.4th 1586, 1594.)  Such situations provide ample opportunity for attorneys to run afoul of Rule 5-220.

In many instances, it may be difficult for attorneys to see the fine line between effective representation of their clients and suppression of evidence.  Yet by being too aggressive in their efforts to prevent the disclosure of adverse evidence, attorneys subject both themselves and their clients to significant risk.  For clients, an attorney’s failure to produce evidence that they have a legal duty to disclose may result in monetary, evidentiary or even terminating sanctions.  (CCP § 2023.030.)  For the attorney, it may also mean State Bar disciplinary proceedings under Rule of Professional Conduct 1-100.  Accordingly, it behooves all practitioners to be mindful of Rule 5-220 when considering what evidence must be disclosed to opposing parties.

-- Jack Leer

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**