Multistate Professional Responsibility Examination (MPRE)Litigation and Other Forms of AdvocacyEasy
A lawyer represents a client in a civil dispute. During discovery, the opposing counsel serves a request for production of documents. The lawyer knows that a particular document exists that is highly damaging to the client's case but is not explicitly covered by the language of the request. The lawyer advises the client not to produce the document.
- AThe lawyer's conduct is ethical if the client agrees to withhold the document.
- BThe lawyer's conduct is ethical if the lawyer believes the document is privileged.
- CThe lawyer's conduct is ethical because the document was not explicitly requested.
- DThe lawyer's conduct is unethical because it obstructs the opposing party's access to evidence.
Show answer & explanationAnswer & explanation
Correct answer: D. The lawyer's conduct is unethical because it obstructs the opposing party's access to evidence.
A lawyer has a duty to ensure fairness to the opposing party and counsel, which includes not unlawfully obstructing access to evidence. Withholding a document known to be relevant and damaging, even if not explicitly requested, violates this duty.
Why the other options are wrong
- A. Client agreement does not absolve the lawyer of ethical responsibilities to the court and opposing party.
- B. Privilege must be asserted formally and with a good-faith basis, not merely by withholding a document without explanation.
- C. The scope of discovery often extends beyond explicit wording to include relevant information; a lawyer cannot exploit ambiguity to hide evidence.
Fairness to Opposing Party
Lawyers must not unlawfully obstruct another party's access to evidence or alter, destroy, or conceal material having potential evidentiary value.
- Duty not to obstruct access to evidence.
- Duty not to falsify evidence.
- Duty not to counsel or assist a witness to testify falsely.
Memory trick: Discovery's fairness means no hiding, just finding truth, not just winning.