Ethics And The Law
Ethical Problems in Document Production

by Barrie Althoff, WSBA Chief Disciplinary Counsel

The ethical duties of a lawyer in discovery arise from both ethical rules generally applicable to all lawyers, regardless of whether the lawyer is acting as a counselor or as an advocate, and ethical rules specifically applicable to a lawyer's conduct as an advocate. After listing and briefly discussing some of the general rules, this article looks at several ethical rules specifically applicable to a lawyer as an advocate requesting documents or responding to document requests.

In conducting discovery, a lawyer must satisfy the general ethical requirements applicable to all lawyers regardless of the nature of their practice. The most basic of these include being competent (RPC 1.1) and diligent (RPC 1.3), not charging more than a reasonable fee (RPC 1.5), safeguarding client confidences and secrets (RPC 1.6), avoiding conflicts (RPC 1.7 et seq.), and not being so closely identified with the client as to fail to give the client independent professional judgment and candid advice (RPC 2.1).

The requirement of RPC 1.1 that a lawyer provide competent representation to a client requires the lawyer to have the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. In the context of document production, competence includes a mastery of the facts and documents of the case to the extent then known; a thorough knowledge of ethical, discovery, evidence and other applicable court rules and laws; an adequate knowledge of the specific subject matter and industry of the litigation (supplemented as appropriate by the use of consultants and experts) so that the lawyer knows what documents the opposing party is likely or required to maintain and which to seek; a well thought-out and executed plan of discovery; and adequate resources (expertise, financial, personnel and so on) to handle the expected magnitude and duration of the discovery and litigation. Lawyers often fail to demonstrate competence in document production and discovery by simply failing to adequately prepare for and conduct discovery; by not making diligent use of document production, interrogatories and depositions; and by simply procrastinating so that discovery deadlines expire without the lawyer having completed discovery. The national survey referenced above found that defense counsel were more likely to question the competence of plaintiffs' counsel than the reverse, but did not hazard a reason for this variance or determine that there was in fact any variation in actual competence.

RPC 1.5 requires a lawyer's fee to be reasonable. Discovery gives rise to almost limitless opportunities for lawyers billing their clients on an hourly basis to overwork cases and increase billings. The national survey found that where attorneys billed on an hourly basis, the total time of disposition of the cases took longer. This may suggest that some lawyers prolong or overwork cases in discovery in their own interests rather than their clients' interests. Recent Washington lawyer discipline cases wherein lawyers were found to have unreasonably billed, lied to, and cheated their litigation clients include In re Wade R. Dann, 136 Wn.2d 67 (1998), and In re Stephen C. Haskell, 136 Wn.2d. 300 (1998), with both lawyers being suspended from practice.

Many of the ethics rules specifically applicable to lawyers as advocates are set out in the nine rules of Title Three of the RPCs. Some of these relate to all phases of litigation, while others focus specifically on discovery or trial. A number of the rules overlap one another. Of particular importance in the area of discovery are RPC 3.1 (prohibiting frivolous litigation and defenses); RPC 3.2 (requiring the lawyer to expedite the litigation); RPC 3.3 (requiring candor toward the tribunal); and RPC 3.4 (requiring fairness to the opposing party and counsel).

A lawyer has a general ethical duty under RPC 1.3 to act with reasonable diligence and promptness in representing a client. While use of many pretrial procedures, including document production and interrogatories, may prolong litigation, a lawyer also has a specific ethical duty as an advocate under RPC 3.2 "to make reasonable efforts to expedite litigation consistent with the interests of the client." The RPC 3.2 qualification of "consistent with the interests of the client" does not authorize a lawyer to intentionally delay proceedings at the behest of, or for the sake of, the client.

When a lawyer knows that a client is expecting assistance not permitted by the RPCs or by other law, such as the unjustified intentional delay of proceedings, RPC 1.2(e) requires the lawyer to consult with the client and explain the limitations of what the lawyer can do for the client. While the client determines the objectives of the legal representation, under RPC 1.2 the lawyer determines the means by which the objectives are to be met. A client's interest, for example, in causing the opposing party significant extra costs by unduly delaying or hindering discovery is not a legitimate client interest that would justify a lawyer seeking to delay discovery.

RPC 3.2 is modeled on Rule 3.2 of the ABA Model Rules of Professional Conduct. The comment to the model rule states that "[d]elay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar." The comment goes on to note that "[t]he question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client."

RPC 3.1, captioned "Meritorious Claims and Contentions," provides in part that a lawyer "shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous.…" The general prohibition of RPC 3.1 against frivolous proceedings and defenses is more specifically applied to discovery in RPC 3.4(d). That rule specifically prohibits the above-mentioned types of document production abuse by providing: "A lawyer shall not...(d) [i]n pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party."

Putting aside the issue of whether the underlying litigation (or the defense thereof) is itself frivolous, most lawyers likely have encountered interrogatories or document requests so broadly written as to in effect seek to freely roam throughout the opposing party's files, often attempting to overburden the opposing party. Likewise, many a lawyer likely has encountered wholly frivolous excuses for not producing documentation which have no purpose other than to obstruct access to information, with responses to document requests or interrogatories being filled with a litany of stock excuses for not providing requested information.

Abuse of discovery by a recipient can include either not responding to a request for information or documents, or making unreasonable excuses for not doing so. In Roland v. Salem Contract Carriers, 811 F.2d 1175 (7th Cir. 1987), the court dismissed a case where a lawyer failed to respond to interrogatories and orders by the court to reply, and provided incomplete and evasive responses. The lawyer in Jones's Case, 628 A.2d 254 (NH 1993), was disbarred for misrepresenting to the court and opponent that neither he nor his client had a particular document when in fact he had the document.

Frivolous objections to discovery are usually made either to prevent the opposing side from gaining access to relevant documents or information, or to delay that access as long as possible and make it as expensive as possible for the opposing party. These goals are accomplished more directly by destroying or altering documents or falsifying evidence. RPCs 3.4(a) and (b) specifically prohibit this type of misconduct, whether done directly or indirectly, and prohibit a lawyer from counseling or assisting another person to engage in such misconduct. RPCs 3.4(a) and (b) read as follows:

A lawyer shall not:

(a) Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law....

RPC 3.4(a) applies generally to the entire process of discovery. Its intent is to encourage the free exchange of information subject to a party's right to object. Although RPC 3.4(a) prohibits the "unlawful" alteration, destruction or concealment of documents, it does not prohibit the alteration or destruction of documents pursuant to the reasonable and normal course of a party's usual records-management and records-destruction policies, where the party had no reason to believe the documents would be subject to discovery.

The difficulty in applying civil sanctions for violations of civil or evidentiary rules or disciplinary sanctions for violations of ethical rules in the context of discovery abuses is that the stakes are often very high; discovery rules and related discipline rules are often matters of judgment and good faith which are very expensive to litigate; and courts themselves appear reluctant to impose sanctions, doing so only in egregious cases. Even when sanctions are ordered, they may not be pursued if the case finally reaches a settlement mode. Enforcement and sanction issues collateral to the main litigation are usually not of interest to clients, who may well be reluctant to pay for the often significant amount of legal resources needed to try to prove discovery violations.

Document production is an area ripe for abuse, in part because it is difficult and expensive to prove and the rewards for abuse can be high, from delay at the expense of the opposing party, to harassment of the opposing party, to winning the lawsuit if materially damaging evidence is kept from coming to light. The national survey noted that document production, while not the most expensive discovery device, is the area of discovery in which the most problems are likely to arise.

Among the important cases arising in Washington which exemplify discovery abuse problems, although none arose specifically under the RPCs, are Physicians Insurance Exchange v. Fisons Corp., 122 Wn.299, 858 P.2d 1054 (1993); Staggs v. Subaru (U.S.D.C., W.D. WA., May 23, 1995 unreported oral decision); In re Firestorm 1991, 129 Wn.2d 130 (1996); and more recently, Johnson v. Mermis, 91 Wn.App. 127 (Div. I, 1998).

The problems usually arise from the use of discovery as a tactical weapon rather than a tool to "expose the facts and illuminate the issues." Advisory committee note to Amendments to the Federal Rules of Civil Procedure, 97 F.R.D. 166, 216-19 (1983), quoted in Fisons, 122 Wn.2d 299, 341 (1993). Where discovery is used as a tactical weapon, there is a high probability of violating the RPCs, particularly where the lawyer abandons his or her independence as required by RPC 2.1 and becomes in effect a mere tool of his or her client.

Among the common abuses in document production is stonewalling — refusing to produce properly requested and discoverable materials, a refusal usually camouflaged with all types of objections. The extreme of this abuse is the destruction of evidence — something usually very difficult to prove. The conduct usually results in time-consuming and costly motions to compel, thus further delaying and increasing the cost of discovery. Another abuse is somewhat the opposite: instead of giving nothing, the offending party dumps everything, without order or logic, hoping the valuable documents are lost in the trash.

A common abuse by recipients of discovery is nonresponsive responses, with frequent sprinklings of objections that queries are over-broad, burdensome, etc. Related to this are partial answers preceded by various objections so that it is unclear whether the answer is complete or not, or which objection is responsible for limiting the response. In Staggs, the court observed (at page 26) that "There was this curious objection, some of which were not proper objections, none of which were specific or clear, followed by an answer that was an incomplete answer that in my view could only be calculated to throw the plaintiffs off the trail of something."

In Fisons, two "smoking gun" documents were withheld in discovery. Very late in the case one of the documents was anonymously delivered to the other side, and sanctions and further discovery were then sought. The trial court denied sanctions, even though the interrogatories and requests for production should have led to the discovery of the two documents. Further court-ordered discovery led to delivery of the second smoking-gun document, along with nearly 10,000 other relevant documents.

On appeal, the Washington Supreme Court held that CR 26(g) sanctions should be imposed, noting that conduct under that rule was "to be measured against the spirit and purpose of the rules, not against the standard of practice of the local bar." 122 Wn.2d 299, 345. The court noted that "[f]air and reasoned resistance to discovery is not sanctionable. Rather it is the misleading nature of the...responses that is contrary to the purposes of discovery and which is most damaging to the fairness of the litigation process." (122 Wn.2d 299, 347). The court went on to characterize the responses to interrogatories as "evasive or misleading."

The court had little patience with the claim of the attorneys that "they were just doing their job, that is, they were vigorously representing their client. The conflict here is between the attorney's duty to represent their client's interest and the attorney's duty as an officer of the court to use, but not abuse, the judicial process." The court went on, at pages 354-5 of the Fisons opinion, to place the lawyer's litigation duty to his or her client in the greater context of duties to the legal system by quoting approvingly, "[V]igorous advocacy is not contingent on lawyers being free to pursue litigation tactics that they cannot justify as legitimate. The lawyer's duty to place his client's interest ahead of all others presupposes that the lawyer will live with the rules that govern the system... [cites omitted]."

The Staggs case, like Fisons, involved discovery abuses and withholding material documents. After noting various excuses for nondiscovery, the court noted that "[t]elling your opponent what you have is not the same as giving what you have to them. Many discovery abuses in this case could have been avoided by the simple device of saying, 'This is what we have, but you're not entitled to it for these reasons,' so there is no mystery about what is there and the issue can be joined over whether it's discoverable and not over whether it exists." (page 10). The court also rejected the attorneys' claims that the documents sought were not within the scope of proper discovery by noting that the court had specifically ruled that they were in fact within that scope (page 11).

In In re Firestorm 1991, the court held that the ex parte interview by plaintiffs' lawyers of an expert witness for a potentially adverse party violated CR 26 and was sanctionable. The expert had contacted the lawyers and volunteered what he said was valuable information which he claimed he feared would be sealed. The court concluded that the lower court sanction of disqualification was too severe, however, and that it did not meet the sanctions guidelines for discovery abuse enunciated by Fisons (at 122 Wn.2d, 299, 355-6). Under those guidelines, the court should impose the least severe sanction that would be adequate to serve the purpose of the particular sanction. Additionally, the sanction should not be so minimal as to undermine the purpose of discovery, and the sanction should ensure that the wrongdoer does not profit from the wrong.

In Johnson, the Court of Appeals found that a lawyer improperly instructed his client not to answer deposition questions, improperly conferred with his client between questions and answers, improperly objected to questions with boilerplate objections without being specific, and improperly withheld relevant documents. The court rejected the attorney's defense that questions asked were not relevant, stating that "[a] defendant or his counsel cannot unilaterally determine the relevancy of evidence during discovery nor unilaterally limit the scope of the deposition. Counsel must instruct witnesses to answer all questions directly and without evasion to the extent of their testimonial privilege, unless properly instructed not to answer."

After the trial court had imposed sanctions for the repeated abuses, the appellate court affirmed, and imposed sanctions for the frivolous appeal. Referring to Fisons, the appellate court paraphrased Fisons' observation that a "spirit of cooperation and forthrightness during the discovery process is mandatory for the efficient functioning of modern trials."

Document production, while not the most expensive discovery device, is the area of discovery wherein the most problems are likely to arise. So long as lawyers are permitted to use discovery in general and document production in particular as a tactical weapon rather than a tool to "expose the facts and illuminate the issues," discovery abuse will continue to be a problem. The ethical mandate of the RPCs to lawyers to use discovery as intended is clear. If lawyers want to regain pride in their profession and themselves, respecting and adhering to the ethical rules in discovery is a necessary first step.