FAIRNESS TO OPPOSING PARTY AND COUNSEL

The procedure of the adversary system contemplates that the evidence in a case is to be marshalled 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. Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed, or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Subdivision (a) applies to evidentiary material generally, including computerized information. With regard to subdivision (b), it is not improper to pay a witness’s expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee. Previously, subdivision (e) also proscribed statements about the credibility of witnesses. However, in 2000, the Supreme Court of Florida entered an opinion in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000), in which the court allowed counsel in closing argument to call a witness a “liar” or to state that the witness “lied.” There the court stated: “First, it is not improper for counsel to state during closing argument that a witness ‘lied’ or is a ‘liar,’ provided such characterizations are supported by the record.” Murphy, id., at 1028. Members of the bar are advised to check the status of the law in this area. Subdivision (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also rule 4-4.2.

Amended July 23, 1992, effective January 1, 1993 (605 So.2d 252); amended October 20, 1994 (644 So.2d 282); amended Sept. 24, 1998, effective Oct. 1, 1998 (718 So.2d 1179); amended October 6, 2005, effective January 1, 2006 (916 So.2d 655); amended May 29, 2014, effective June 1, 2014 (140 So.3d 541).