Can a lawyer advise a divorce client to destroy phone bills the other side has not requested?

Plain-English summary

The committee considered an attorney representing the wife in a divorce action who wished to advise her to destroy telephone bills showing calls she had placed to another man she became interested in four months after separating from her husband. The committee concluded it was not improper to give that advice, reasoning under EC 7-24 that the wife was under no obligation to produce or provide the telephone bills.

The committee note records that current Rule 3.4(a) reaches a different result: a lawyer cannot advise a client to destroy the bills where it is foreseeable they would be relevant evidence in the planned divorce action.

Currency note

This opinion was issued in 1986, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that the conclusion does not hold under current Rule 3.4(a), which bars advising a client to destroy material that would foreseeably be relevant evidence. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer advise a divorce client to destroy unrequested phone records?

A: Under this 1986 opinion and EC 7-24, the committee found it not improper because the client was under no obligation to produce or provide the bills. The committee note adds that current Rule 3.4(a) would prohibit that advice where the bills would foreseeably be relevant evidence.

Q: What did the committee rely on for the holding?

A: The committee rested on EC 7-24 and the premise that the wife had no obligation to produce the telephone bills.

Background and rules framework

The opinion applies the former Code's EC 7-24. The committee note maps the question onto current Virginia Rule 3.4(a), the provision barring a lawyer from unlawfully obstructing access to, or advising destruction of, evidence, corresponding to ABA Model Rule 3.4(a).

Citations and references

Rules of Professional Conduct:

• EC 7-24 (former Code of Professional Responsibility)
• Virginia Rule 3.4(a) / ABA Model Rule 3.4(a) (obstructing access to or destroying evidence)

See also

• VA LEO 848: A Prosecutor Taping a Represented Suspect
• VA LEO 838: The Duty to Report a Disciplinary Violation
• VA LEO 1004: Reporting Another Lawyer's Misconduct

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0839.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LEGAL ETHICS OPINION 839

DIVORCE – DESTRUCTION OF
TELEPHONE BILLS.

It is not improper for an attorney representing the wife in a divorce action to advise the
wife to destroy phone bills which indicate she had placed calls to another man in whom
she became interested four months after separating from her husband. The wife was
under no obligation to produce or provide the telephone bills. [ EC:7-24]

Committee Opinion
October 9, 1986

Legal Ethics Committee Notes. – Under Rule 3.4(a), the lawyer cannot advise the
client to destroy the telephone bills if it is foreseeable that the bills would be relevant
evidence in the planned divorce action.