March 16, 2020

Preparing Witnesses for International Arbitration: Ethical Considerations and Dilemmas

Tyler Scarbrough and Chris Henry

In international construction arbitrations, an interesting situation and dilemma arises when US lawyers and the UK barristers represent the opposing side and are bound by separate and different ethical rules of conduct.  Typically, the US lawyer is permitted to prepare witnesses in advance, while it is unethical for UK barrister to assist witnesses in the same manner.  This can create both confusion and ethical dilemmas if both sets of attorneys are operating in the same forum. 

Witness Preparation in the United States

In the United States, there is an expectation that lawyers will assist in preparing witnesses for trials and arbitrations.  The witness preparation can include role playing and mock-examinations, among other things.  Lawyers can even assist witnesses in crafting responses to questions that may arise on cross-examination.  There is nothing improper or nefarious about this type of preparation, unless the US attorney knowingly induces false testimony from a witness.  Model Rules of Prof'l Conduct R. 3.3 – 3.4 (Am. Bar Ass’n 2018).  Additionally, the comment to Section 116 of the Restatement of the Law (Third) of the Law Governing Lawyers (2000) states that when preparing a witness to testify, “a lawyer may invite the witness to provide truthful testimony favorable to the lawyer’s client.”  The comment also states that “[w]itness preparation may include rehearsal of testimony. A lawyer may suggest choice of words that might be employed to make the witness’s meaning clear. However, a lawyer may not assist the witness to testify falsely as to a material fact.” Restatement (Third) of the Law Governing Lawyers § 116 cmt. (Am. Law Inst. 2000).  Put another way, the lawyer’s “duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.” In re Eldridge, 82 N.Y. 161, 168 (1880).

Despite these references, case law in the United States regarding the acceptable limits of witness preparation is relatively undeveloped.  Presumably, this is because witness preparation is rarely litigated and is typically not an issue until the witness is being cross examined at trial, or during post-conviction or judgment proceedings.  Even after potentially improper witness preparation is discovered, the argument usually involves impermissible discovery techniques or constitutional Brady disclosures (such as a prosecutor coaching a witness to either not disclose exculpatory information, or manufacture testimony that makes it more likely the accused is found guilty), as opposed to the attorney’s ethical obligations.

Nonetheless, there are some cases that affirm the proposition that witness preparation is acceptable as long as it does not induce the witness to provide false testimony.  For example, in Geders v. United States, the court noted that “[a]n attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Geders v. United States, 425 U.S. 80, 90 n.3 (1976).  The court also noted “that the judge expressed full confidence that petitioner’s trial attorney would respect the difference between assistance and improper influence.” Id.  Similarly, the court in State v. Earp held that “[t]he process of preparing a witness for trial, sometimes referred to as ‘horse-shedding the witness,’ takes many forms, and involves matters ranging from recommended attire to a review of the facts known by the witness.” State v. Earp, 571 A.2d 1227, 1234-35 (1990).  The Earp court went on to caution attorneys: “the line that exists between perfectly acceptable witness preparation on the one hand, and impermissible influencing of the witness on the other hand, may sometimes be fine and difficult to discern….” Id. at 1235.  The court then identified certain permissible preparation activities such as “review[ing] statements, depositions, or prior testimony that a witness has given,” and “test[ing] or refresh[ing] the recollection of the witness by reference to other facts of which the attorney has become aware during pretrial preparation….” Id.  However, the court stated that when doing so “the attorney should exercise great care to avoid suggesting to the witness what his or her testimony should be.” Id.

Thus, rehearsing and otherwise preparing a witness for trial and arbitration is not improper and can provide a huge advantage for lawyers licensed in the United States.  However, it is incumbent that when doing so, the attorney takes great caution to ensure that he or she is only preparing the witness, and not feeding them false or otherwise improper information that the witness will simply recite at trial or arbitration.  To coach the witness to offer false information would violate the attorney’s ethical obligations.  Simply put, “[a]n attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way.” Ibarra v. Baker, 338 Fed. Appx. 457, 465 (5th Cir. 2009).

Witness Preparation in the United Kingdom

In other countries, however, lawyers, barristers, and solicitors face a significantly different set of acceptable limits for witness preparation.  For example, in the United Kingdom, Paragraph 705 of the Bar Council Code of Conduct, which outlines the required conduct for barristers, states that a barrister must not “(a) rehearse, practice or coach a witness in relation to his evidence” or “(b) encourage a witness to give evidence which is untruthful or which is not the whole truth.”  Essentially the same rule applies to solicitors who qualify to appear in court.

This stance against witness coaching in the United Kingdom was discussed in the seminal case of Regina v. Momodou and Limani.  The court in Momodou found that “[t]here is no place for witness training [or coaching] in our country, we do not do it. It is unlawful.” R v. Momodou and Limani [2005] EWCA Crim 177.  Specifically, the court stated that there was a “dramatic distinction between witness training or coaching, and witness familiarization.” Id.  The court noted that “[t]raining or coaching for witnesses […] is not permitted [because] discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness.” Id.  The court asserted that a “witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations.” Id.  The court reasoned that this rule “reduces, … [and] hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so.” Id.

The Momodou court noted that “[t]his principle does not preclude pre-trial arrangements to familiarize [the] witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants.” Id.  While the witness should not be “disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works…. [they should not have] discussions about proposed or intended evidence.” Id.    

International Arbitration Rules Regarding Witness Preparation

Despite the clear, but conflicting stances on witness preparation taken by the UK and the US, international arbitration rules provide limited guidance when compared to the previously mentioned rules and case law.  The London Court of International Arbitration (LCIA) Rules include only a single provision that addresses witness preparation.  Article 20.5 of the LCIA Rules states that, “[s]ubject to the mandatory provisions of any applicable law, […] it shall not be improper for any party or its legal representatives to interview any potential witness for the purpose of presenting his or her testimony in written form to the Arbitral Tribunal or producing such person as an oral witness at any hearing.”

Rule 25.5 of the Singapore International Arbitration Centre (SIAC) is similar to the LCIA in that the SIAC states that it is “permissible for any party or its representatives to interview any witness or potential witness (that may be presented by that party) prior to his appearance to give oral evidence at any hearing.”  However, the International Centre for Dispute Resolution (ICDR), Stockholm Chamber of Commerce (SCC) and International Chamber of Commerce (ICC) Rules are all silent on the issue of witness preparation.

The International Bar Association (“IBA”) Rules on the Taking of Evidence are now commonly incorporated into and adopted by Tribunals in International Arbitrations and provide some helpful guidance.  According to the IBA Rules, “[t]hese IBA Rules on the Taking of Evidence in International Arbitration are intended to provide an efficient, economical and fair process for the taking of evidence in international arbitrations, particularly those between Parties from different legal traditions. They are designed to supplement the legal provisions and the institutional, ad hoc or other rules that apply to the conduct of the arbitration.”  The IBA Rules are clear that discussing a fact witness’s prospective testimony is permissible.  Specifically, the IBA Rules provide, in relevant part:  “It shall not be improper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses and to discuss their prospective testimony with them.”  Article 4(3), Witnesses of Fact.  However, an issue still exists.  While the IBA rules make it clear that discussing witness testimony is permissible, is a UK barrister still bound by their ethical obligation to avoid witness training and coaching?

Navigating the Grey Area

Thus, a grey area still exists with respect to what is ethically acceptable for attorneys to do in international arbitration.  For example, if American attorneys are adverse to UK barristers in an international arbitration, in light of what has been discussed, what are each parties’ ethical obligations?  Considering the foregoing, it is clear that both judicial systems permit some form of witness preparation, but not necessarily witness “training” or “coaching.” 

This grey area may create the issue of whether evidence and testimony is properly obtained.  For example, if the US attorney “coaches” his/her witnesses, while the UK barristers do not, then the UK barristers may raise an objection to the testimony and ask the tribunal to exclude it.  In addition to possibly causing the exclusion of the testimony, this move would also increase the time and costs associated with the arbitration.  As a result, US attorneys would be incentivized to avoid such risks.  One possible solution is to make a pre-arbitration stipulation with the opposing party regarding permissible witness preparation.  Another possibility is to have a pre-arbitration conference with the Tribunal to determine what their expectations are.  Regardless, in the international arbitration arena, you must be certain that all sides are playing by the same set of rules to avoid unfair advantages in administering the arbitration. 

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Tyler Scarbrough

Jones Walker LLP, Atlanta, GA

Chris Henry

Jones Walker LLP, Atlanta, GA