A lawyer representing a client in a civil personal injury case is preparing for a deposition of a key witness. The lawyer knows that the witness has a past criminal conviction for embezzlement, which is admissible for impeachment purposes. The opposing counsel has not yet discovered this conviction. The lawyer also knows that the witness is generally truthful and the conviction is unrelated to the current case. What is the lawyer's ethical obligation regarding this information?
- AThe lawyer must immediately disclose the witness's prior conviction to opposing counsel.
- BThe lawyer must inform the witness that their conviction will be used for impeachment.
- CThe lawyer is not ethically obligated to disclose the conviction to opposing counsel.
- DThe lawyer should anonymously tip off opposing counsel about the conviction.
Show answer & explanationAnswer & explanation
Correct answer: C. The lawyer is not ethically obligated to disclose the conviction to opposing counsel.
Lawyers generally have no ethical duty to volunteer information to an opposing party that is publicly available or discoverable through their own diligence, especially if it is adverse to the opposing party's witness. The duty of fairness does not extend to assisting the opposing side in their case preparation.
Why the other options are wrong
- A. There is no ethical rule requiring a lawyer to disclose impeachment material about an opposing witness to opposing counsel.
- B. While a lawyer might choose to do this as a matter of strategy or courtesy, it is not an ethical obligation to warn an opposing witness about impending impeachment.
- D. Anonymously tipping off opposing counsel is an indirect and unnecessary action; it is not an ethical obligation.
Fairness to Opposing Party (Discovery)
Lawyers must not obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. However, lawyers are generally not required to volunteer adverse information to an opposing party if it is discoverable through due diligence.
- Cannot obstruct access to evidence.
- Cannot unlawfully alter or conceal evidence.
- No general duty to disclose adverse information discoverable by the opponent.
Memory trick: Fairness means no obstruction, not free evidence.