Monetary Offer for Witness Testimony Triggers Suspension

Correspondence to Third-Party Witnesses Leads to Ethical Violations

Counsel represented a party in a will dispute. During the representation of the party, counsel sent a letter to witnesses of the disputed will. He offered $7,000 “[i]n exchange for your honest testimony . . . that you never witnessed the Decedent signing a will.” The attorney also threatened the witnesses with personal liability and “the legal implications of perjury” if the witnesses did not disavow the legitimacy of the will. Counsel sent the letter again by email to one witness.

A three-member hearing panel of the Southern Nevada Disciplinary Board unanimously found that counsel’s communications with the third-party witnesses violated two professional conduct provisions: Nevada Rule of Professional Conduct (RPC) 3.4(b) (fairness to opposing party and counsel: offer of an inducement to a witness that is prohibited by law) and RPC 8.4(d) (misconduct prejudicial to the administration of justice).

Counsel defended his conduct before the panel on several bases. He argued someone forged the will, he needed the witnesses to disavow the will to prove his case, and he asked for truthful testimony. Two of the three panel members voted to impose the lightest sanction available, a public reprimand, based on their finding counsel acted negligently. The third member of the panel concluded that counsel’s conduct was intentional and merited a 30-to-60-day suspension.   

High Court Deems Attorney Suspension Required

The Nevada Supreme Court automatically reviewed the panel’s decision. It agreed with the disciplinary panel that the State Bar established by clear and convincing evidence counsel’s violations of RPC 3.4(b) and 8.4(d). But the court concluded that the record did not support the panel’s recommendation of publicly reprimanding counsel’s conduct. In deciding whether the panel’s recommended discipline is proper, the court weighs four factors: (1) the duty violated, (2) the lawyer’s mental state, (3) the potential or actual injury caused by the lawyer’s misconduct, and (4) the existence of aggravating or mitigating factors. The court concluded that counsel’s actions were not negligent but deliberate.

The court explained that it is unethical for a lawyer to offer money to a fact witness contingent on the content of the witness’s testimony (RPC 3.4(b)). Similarly, a lawyer may not threaten a witness with criminal prosecution for refusing to testify as the lawyer expects (RPC 8.4(d)). The court noted these are fundamental baseline rules upon which our adversarial system depends. In its decision, the court found only one published opinion where an intentional act violating Rules 3.4(b) and 8.4(d) resulted in reprimand. Other reported decisions imposed sanctions ranging from 35-day suspension to disbarment, depending on prejudice and case-specific mitigating and aggravating factors.

Despite the seriousness of counsel’s actions, the court considered he had no prior disciplinary offenses, eventually revoked his improper offer before money exchanged hands, and enjoys an otherwise good reputation. For these reasons, the court suspended counsel from the practice of law for 35 days. It also required he must complete six hours of continuing legal education on professional conduct during the suspension period.

Attorneys Must Understand Ignorance of Ethics Rules Is Inexcusable

Section leaders agree that the actions taken by the attorney in this case were highly inappropriate and avoidable. “Any time a lawyer offers to pay an excessive amount to a fact witness there is a potential for criminal exposure, as well as discipline under Rule 3.4,” warns Thomas G. Wilkinson, Jr., Philadelphia, PA, CPR/SOC Professional Responsibility Liaison for the ABA Section of Litigation’s Ethics and Professionalism Committee. “Lawyers must steer clear of compensating fact witnesses contingent on the substance of their testimony,” continues Wilkinson. Ultimately, “the decision is a reminder to attorneys that ignorance of one’s ethical obligations—or even a mistaken view of the scope of those obligations—will not insulate an attorney from serious discipline,” advises Jeremy T. Brown, Houston, TX, Newsletter Editor for the Section’s Trial Practice Committee.

But Section leaders also note the ethics rules generally permit reasonable compensation for a fact witness’s time, but not the content of a witness’s testimony. “Unfortunately, this is an area where the text of Rule 3.4 could be more helpful if amended to express the majority approach that reasonable compensation is allowed for a witness’s time incurred in preparation for or giving testimony,” observes Wilkinson. Nevertheless, “it is incumbent on attorneys to not only be familiar with the governing ethical rules but to consult those rules, comments, and interpretive rulings carefully whenever one has any uncertainty as to whether a contemplated action might fall below the ethical bar,” concludes Brown.

Onika K. Williams is an associate editor for Litigation News.

Hashtags: #witness, #compensation, #threat, #ignoranceoflaw

Related Resources

• American Bar Association House of Delegates Resolution 109, Amendment of Model Rule of Professional Conduct 8.4 (2016).
• Paula A. Schaefer, “Attorneys, Document Discovery, and Discipline,” 30 Geo. J. Legal Ethics 1 (Winter 2017).

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