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My understanding is that in criminal cases, the prosecution must disclose exculpatory evidence that they have come across, to the defense.

Is there a similar rule in civil cases? Suppose someone who wants to build a home assumes that the contractor has insurance, and the contract warrants and represents this assumption. If the contractor's lawyer then discovers that the contractor doesn't have insurance, is the contractor's lawyer required to disclose this (presumably) material fact? Or at least see that his client does so?

  • I could be wrong but voluntary disclosure is not a thing. Typically disclosure occurs through discovery where it is mandatory. – Viktor Oct 13 '18 at 23:43
  • Your example isn't clear, does the contractor have a lawyer because of an action brought by the customer? If that is the case, the customer would probably know that the contractor didn't have insurance when they tried to file a claim, which would have kicked off the lawsuit... – Ron Beyer Oct 13 '18 at 23:50
  • Well, @Viktor, although calling them voluntary would be a stretch because it's unlikely anyone likes giving up that info, there are provisions obligating disclosure of certain info even without a discovery request in the fed rules on both Crim and civil procedure. – A.fm. Oct 15 '18 at 22:51
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The wording of your question is strange, as it asks when a lawyer would "have to voluntarily" do something, which is an oxymoron.

If a lawyer wants to disclose information, she's pretty much always free to do so, assuming it isn't privileged or otherwise protected from disclosure.

There are also some mechanisms that force the disclosure of information. There is no rule I've heard of broadly requiring the disclosure of information favorable to the other side, but there are in some jurisdictions rules requiring the disclosure of certain information, even if it is not asked for.

Most relevant would be Rule 26 of the Federal Rules of Civil Procedure, which requires the disclosure of certain information from both sides, including insurance policies that might be used to pay off a judgement:

Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

This process typically happens toward the beginning of the case, but there may be some other mandatory disclosures later on, as well.

This rule is only applicable in federal courts, but I believe some states have parallel rules.

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    In many states, in civil cases, the state equivalent to rule 26 that is not limited to information that the disclosing party intends to use and can include exculpatory evidence. Also, discovery questions must be responded to completely. See generally Civil Procedure Rules 26-37. And, a lawyer can generally only disclose information voluntarily if the client consents or it furthers the representations or is necessary to prevent a crime or fraud. See Model Rule of Professional Ethics 1.6. – ohwilleke Oct 15 '18 at 13:04

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