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By Samson Habte
Feb. 18 --Although ethics rules do not prohibit lawyers from paying for physical evidence in connection with litigation, limitations may apply when such a transaction “involves witness payments or the prospect of false evidence,” the New York state bar's ethics committee advised Jan. 24 (New York State Bar Ass'n Comm. on Prof'l Ethics, Op. 997, 1/24/14).
The guidance came in an opinion that addresses whether an attorney representing a personal injury client may pay a store for its surveillance footage that captured the accident. The committee explained that “The storeowner has contacted the lawyer and has offered to provide the surveillance tape for a payment.”
It also addresses whether payment may be made contingent on case outcome, and whether the client must ultimately bear the cost of procuring the evidence.
The committee said such transactions generally are permissible, that there “is no per se rule against such payments being contingent on case outcome,” and that there is “no requirement that the cost of purchasing evidence be charged to the client.”
But the committee's approval of evidence-buying is dotted with qualifications.
The most significant caveats relate to the potential applicability of New York Rule of Professional Conduct 3.4(b), which strictly limits payments to witnesses. The rule states that witnesses may only be given “reasonable compensation” for their time and expenses, and it stipulates that lawyers may not make witness compensation “contingent upon the content of the witness's testimony or the outcome of the matter.”
Although Rule 3.4(b) does “not apply to purely physical as opposed to testimonial evidence,” the opinion states, it may be implicated in the present scenario because “the lawyer may need to offer foundation testimony by the person who has offered the tape for sale.”
Lawyers who pursue offers to purchase evidence must ensure that the materials being sold are reliable, the committee said. It identified this obligation as arising from several ethics rules.
“First is the prohibition of knowingly offering or using false evidence,” the committee said. Citing Rule 3.3(a)(3), it explained that a lawyer “who knows that a surveillance videotape has been fraudulently altered may not offer or use that videotape.”
“Nor may the lawyer evade that Rule by remaining willfully blind to the falsity of the videotape,” the committee added, citing an ethics opinion that discussed the applicability of the criminal law “conscious-avoidance doctrine” in the ethics context. New York State Ethics Op. 993 (2013).
The opinion notes that reliability concerns “may be heightened when, for example, the evidence in question is readily susceptible to alteration that is difficult to detect; when the payment for the evidence seems disproportionately large; and when a person involved in the transaction otherwise acts in ways raising suspicion about the integrity of the evidence.”
“On sufficiently extreme facts, the purchase in such a case could amount to an ethical violation,” the committee continued, citing Rule 8.4(d)'s prohibition on conduct prejudicial to the administration of justice. “While we cannot specify in the abstract all the circumstances that could rise to the level of a violation, a trial court would be positioned to assess the facts of a particular case and fashion appropriate remedies.”
Lawyers contemplating a purchase of evidence must also consider the potential applicability of Rule 3.4(b), the committee said. That rule imposes two broad restrictions on the compensation of fact witnesses.
First, it states that such payments may not be made contingent on “the content of the witness's testimony or the outcome of the matter.” Additionally, it stipulates that such payments must be calculated to reimburse witnesses “for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses.” See New York State Ethics Op. 962 (2013) (discussing “reasonable related expenses” permitted by Rule 3.4(b)(1)).
“By the terms of the Rule, the limitations--including the prohibition of payment contingent on the matter's outcome--do not apply to purely physical as opposed to testimonial evidence,” the committee said. But the introduction of physical evidence must in some instances be accompanied by foundation testimony from the person who produced the materials, the committee added.
Accordingly, it explained, “When it is foreseeable that the lawyer will have occasion to call that person as a witness, either to authenticate the tape or for any other reason, then the lawyer will be subject to ethical limitations on witness payments.” A lawyer “may not circumvent the restrictions of Rule 3.4(b) by disguising witness payments in whole or part as payments for physical evidence,” the opinion warns.
The committee largely focused on whether ethics rules proscribe evidence-buying. However, one portion of the opinion suggests that lawyers may in some instances have an affirmative obligation to pursue such transactions, as part of their general duty of competence.
“Such payment may, depending on the circumstances, be an appropriate means of advancing a client's interests,” the committee stated, citing the dictate in Rule 1.1(c)(1) that a lawyer shall not intentionally “fail to seek the objectives of the client through reasonably available means permitted by law and these Rules.”
The committee pointed out in a footnote, however, that subpoenas have long served as an alternative means for acquiring essential evidence. The committee declined to “address factors bearing on a lawyer's choice between seeking to obtain evidence by purchase or subpoena.”
If a lawyer does choose to buy evidence, the committee said, there “is no requirement that the cost of purchasing evidence be charged to the client immediately, or in some cases, even ultimately.” See Rule 1.8(e)(1)-(3) and cmts. [9B] &  (providing that lawyers may “advance” litigation expenses, including evidence procurement costs; that repayment “may be contingent on the outcome of the matter”; and that lawyers may “pay” such costs for indigent or pro bono clients and in contingent fee cases).
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