On August 5, 2023, the ABA issued Formal Opinion 508, providing advice on the ethics of witness preparation. See ABA Formal Opinion 508 (August 5, 2023).
The ABA Issues Guidance on the Ethics of Witness Preparation
A critical element of competent representation includes adequate preparation of a client or witness who provides testimony. But here lawyers can cross into unethical territory. Some witness preparation may veer into the realm of what is commonly known as unethical witness “coaching.” In addition, the expanding use of remote technology provides opportunities for unethical witness coaching to go undetected.
What Can I Do to Prepare My Witness Ethically?
The ABA outlines the types of witness preparation that will not run afoul of the Model Rules:
- remind the witness that they will be under oath
- emphasize the importance of telling the truth
- explain that telling the truth can include a truthful answer of “I do not recall”
- explain case strategy and procedure, including the nature of the testimonial process or the purpose of the deposition
- suggest proper attire and appropriate demeanor and decorum
- provide context for the witness’s testimony
- inquire into the witness’s probable testimony and recollection
- identify other testimony that is expected to be presented and explor the witness’s version of events in light of that testimony
- review documents or physical evidence with the witness, including using documents to refresh a witness’s recollection of the facts
- identify lines of questioning and potential cross-examination
- suggest choice of works that might be employed to make the witness’s meaning clear
- tell the witness not to answer a question until it has been completely asked
- emphasize the importance of remaining calm and not arguing with the questioning lawyer
- tell the witness to testify only about what they know and remember and not to guess or speculate
- familiarize the witness with the idea of focusing on answering the question, i.e., not volunteering information.
See ABA Formal Opinion 508 at 3-4 (August 5, 2023).
What Kind of Witness Preparation is Unethical?
The ABA recognizes that there are two categories of witness coaching: coaching that takes place before the witness’s testimony, and coaching that takes place during the witness’s testimony.
What Kind of Pre-testimony Witness Preparation is Unethical?
Model Rule 3.4(b) prohibits a lawyer from advising or assisting a witness in giving false testimony. Unethical influencing behavior in this area might arise in situations beyond directly instructing a witness to lie. The ABA identifies some prohibited behaviors:
- Telling a witness to “downplay” the number of times the witness met with counsel to prepare for trial. See In re Meltzer, 21 N.Y.S. 3d 63 (2015).
- Scripting, or “programming” witness testimony. See In re Brooke P. Halsey, 02-10195 (State Bar of Calif. Hearing Dep’t, 2006) (pre-trial scripting of an expert witness was so extreme that it “tampered with the heart of [the witness’s] testimony).
- Violating a tribunal’s sequestration order. See Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981) (lawyer provided expert witness with transcripts other witness’s testimony in violation of the court’s sequestration order).
- Falsifying facts in a memorandum to be reviewed by a witness. See In re Edson, 108 N.J. 464 (1987) (lawyer disbarred for providing a witness with a memo containing falsified facts).
- Witness tampering of any kind, including offering inducements not to testify or paying lay witnesses for testimony (even truthful testimony). See Model Rules of Prof’l Conduct, R. 3.4, Comment [3].
- Other inducements to testify or not testify are also unethical, such as donating money to a witness’ favorite charity in exchange for testimony. See Christopher v. DePuy Orthopaedics, Inc., 888 F.3d 753 (5th Cir. 2018) (granting relief under Fed. R. Civ. P. 60(b) where lawyer donated $10,000 to witness’s private school alma mater).
What Kind of Conduct is Unethical During Witness Testimony?
Manipulating a witness’s testimony while that witness is testifying will constitute conduct prejudicial to the administration of justice in violation of Rule 8.4(d). This will include the following types of unethical behaviors directed at testimony-in-progress:
- winking
- signaling a “thumbs up” or “thumbs down”
- kicking a deponent under the table
- passing notes
- whispering to a witness mid-testimony
Unique Problems Posed by Remote Technology
The widespread use of remote technology simply makes it easier for a lawyer to engage in unethical coaching undetected. Often participants will not all be in the same location, and a lawyer in the same room as a witness may be able to influence the witness’s testimony without being noticed. Unethically coaching witnesses remotely puts a lawyer in jeopardy of sanctions and disciplinary action, the same as live manipulation. For example, a Florida lawyer was disciplined for texting a testifying witness during a deposition. The Florida Bar v. James, 329 So. 3d 108 (Fla. 2021). An Arizona lawyer was disciplined for using the chat feature of a remote platform to instruct his client during cross-examination. See In re Claridge, 21-9088 (Ariz. 2022). Other prohibited signals such as winking, gesturing, or passing notes, might occur more easily between a lawyer and witness in remote proceedings. Luckily there are preventative measures that may assist participants in guarding against these behaviors.
Systemic Precautions Can Guard Against Unethical Coaching
The ABA suggests the following measures to detect and counter unethical witness coaching:
- Skillful cross examination
- Court orders directing uninterrupted testimony
- Motions to terminate or limit a deposition or for sanctions
- Inclusion of protocols in remot deposition orders, scheduling orders, and proposed discovery plans
- Administrative orders governing the conduct of remote depositions
- Inclusion of remote protocols in trial plans and pretrial orders
- Development of guidelines and best practices for conduct in remote proceedings
- Professionalism/Civility/Courtesy Codes
See ABA Formal Opinion 508 at 10-11 (August 5, 2023).
It would be prudent to adopt preventative measures to identify and guard against unethically influencing witnesses during their testimony. With these suggestions in mind, remote proceedings may be structured in advance, either through agreement or by court order, to detect and deter such conduct.
