Do this, not that, when preparing witnesses and during testimony, new ABA ethics opinion says

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“Winking at a witness during trial testimony, kicking a deponent under the table, or passing notes or whispering to a witness mid-testimony are classic examples of efforts to improperly influence a witness’s in-progress testimony,” according to a new ethics opinion by the ABA. Image from Shutterstock.

Lawyers have a duty to prepare and guide witnesses, but attorneys can’t coach a witness in a way that interferes with the integrity of the justice system and obstructs another party’s access to evidence, according to an ethics opinion released Wednesday by the ABA’s Standing Committee on Ethics and Professional Responsibility.

The practice of improperly trying to influence a witness is sometimes known as “coaching, horseshedding, woodshedding or sandpapering,” according to Formal Opinion 508. The opinion begins with an example of a fictional lawyer’s attempt to coach a witness, taken from an HBO series called The Trial of Jack McCall.

A Sept. 6 ABA press release is here.

Jack McCall: Well, I’m a hard case for you, counselor. And no mistake, everyone in there saw me shoot him.

Lawyer: If you’ll let me set our strategy, I don’t think we’ll dispute what people saw.

Jack: Now, I guess you’re here to break me out. (Lawyer chuckles)

Lawyer: Son, did James Butler Hickok ever kill a—relative of yours?

Jack: James Butler Hickok?

Lawyer: Wild Bill Hickok. Did he ever kill a brother of yours or—or the like?

Jack: A brother?

Lawyer: I’m asking you if what happened in that saloon was vengeance, for the death of a family member? Possibly a brother in Abilene. Or the like.

Jack: (Jack smirks, cocks head pensively) A brother in Abilene … (Lawyer smiles, pats Jack twice on the knee, and exits).”

Pretrial preparation

Certain types of witness preparation clearly violate ethical rules, the opinion says. They include:

  • Counseling a witness to give false testimony
  • Assisting a witness in offering false testimony
  • Advising a client or witness to disobey a court order regulating discovery or trial process
  • Offering an unlawful inducement to a witness
  • Procuring a witness’s absence from a proceeding

Getting a witness to lie can happen in ways that go beyond an outright instruction to fabricate testimony, the ethics opinion says. A lawyer shouldn’t tell a witness to “downplay” the number of times that they met before trial, for example, or they shouldn’t encourage a witness to misrepresent the location of an accident.

The opinion provides another example in the 10th footnote. It’s proper to tell a witness that a truthful answer of “I do not recall” is an acceptable response. But it’s not ethical to tell a witness, “The less you recall, the better.”

One ethics rule that applies in this area is Model Rule 3.4(b) of the ABA Model Rules of Professional Conduct, which bars lawyers from advising or assisting a witness to give false testimony.

Other ABA Model Rules that could be implicated include Rule 1.2 (Scope of Representation and Allocation of Authority between Client and Lawyer), Rule 3.3 (Candor Toward the Tribunal), Rule 3.4 (Fairness to Opposing Party and Counsel), Rule 4.4 (Respect for Rights of Third Persons) and Rule 8.4 (Misconduct).

The opinion provides a list of what’s OK for a lawyer to do during witness preparation, including:

  • Reminding a witness that they will be under oath
  • Explaining that telling the truth can include a truthful answer of, “I do not recall”
  • Explaining case strategy and procedure, including the nature of the testimonial process and the purpose of the deposition
  • Providing context for the witness’s testimony
  • Asking about the witness’s probable testimony and recollection
  • Identifying other testimony that is expected to be presented
  • Suggesting choice of words to make the witness’s meaning clear
  • Telling the witness to testify only about what they know
  • Familiarizing the witness with the idea of only answering the question and not volunteering information

Witness testimony

During witness testimony, overt attempts to manipulate witness testimony progress would often constitute conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the ABA Model Rules, the opinion says.

“Winking at a witness during trial testimony, kicking a deponent under the table, or passing notes or whispering to a witness mid-testimony are classic examples of efforts to improperly influence a witness’s in-progress testimony,” the opinion says.

The opinion says other more subtle types of signaling have at times resulted in court-ordered sanctions. One example is the “speaking objection” that has the effect of coaching a witness. Some jurisdictions expressly ban speaking objections. And some bar lawyers from instructing a witness not to answer a question unless specifically authorized to do so.

Some lawyers also “attempt to exercise midcourse testimonial influence and undertake damage control during a break or recess,” the opinion says.

There is no express ethical ban on communication with a witness during a break, but some adjudicative officers have exercised control through deposition guidelines and sanctions.

Remote communications

The use of remote technology “provides opportunities and temptations for lawyers to surreptitiously tell or signal witnesses what to say or not say” during testimony, the opinion notes.

The opinion cites the example of a lawyer who was disciplined for sending texts to a witness during a deposition that included directions on how to respond to questions. Another lawyer was disciplined for providing answers to questions while off camera during a remote proceeding. Yet another lawyer was accused of whispering answers to his client during a Zoom deposition.

The opinion suggests some approaches that might help prevent and detect remote coaching. They could include:

  • Cross-examining a witness about coaching
  • Ordering uninterrupted witness testimony
  • Court protocols for virtual proceedings

The opinion links to several protocols, including a New York courts protocol that requires a warning against electronic communication during testimony.

“The use of technology in the profession, particularly remote-meeting technologies, presents distinct opportunities for surreptitious witness coaching,” the opinion says. “But the model rules that constrain unethical witness coaching extend to all testimonial contexts, regardless of format.”

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