No Coaches Wanted

There are limits to attorney conduct in preparing a witness to testify, as highlighted in Formal Opinion 508 of the ABA’s Standing Committee on Ethics and Professional Responsibility. This formal ethics opinion provides guidance for complying with the ABA Model Rules of Professional Conduct when preparing a witness or client to testify before a deposition or adjudicative proceeding. Opinion 508 explains the difference between legitimate witness preparation and unethical “coaching.”

Walking the Line Between Preparation and Coaching

Opinion 508 acknowledges that “preparing a witness to testify… is considered an essential tactical component of a lawyer’s advocacy in a matter in which a client or witness will provide testimony.” The opinion further notes that “under the Model Rules, the failure to adequately prepare a witness would in many situations be classified as an ethical violation. But, in some witness-preparation situations, a lawyer clearly steps over the line of what is ethically permissible. Counseling a witness to give false testimony or assisting a witness in offering false testimony, for example, is a violation of at least Model Rule 3.4(b).” The opinion stresses the importance of lawyers understanding the important ethical distinctions between discussing testimony as opposed to seeking to improperly influence it.

Ethical Conduct Prior To and During Proceedings

Opinion 508 provides examples of potential unethical and ethical conduct prior to and during a deposition or adjudicative proceeding. According to the opinion, potential unethical conduct prior to a deposition or proceeding includes advising a client or witness to disobey a court order, procuring a witness’s absence from a proceeding, or compensating a lay witness for the substance of their testimony or conditioning such payment on the content of the witness’s testimony.

Potential unethical conduct during a deposition or adjudicative proceeding concerns speaking objections or overt efforts to influence a witness’s testimony, such as by winking at a witness. Improper speaking or suggestive objections go beyond stating an objection and instead influence what the witness may say and impede the deposing attorney’s discovery. The opinion notes that some jurisdictions have rules to prohibit objections that have a coaching effect on a witness and restrict speaking objections during a deposition.

Opinion 508 also identifies examples of ethical conduct in preparing a witness: telling a witness to tell the truth; advising that a truthful answer of “I do not recall” is an acceptable response; explaining case strategy and procedure; suggesting proper attire, demeanor, and word choice; inquiring into probable testimony and recollection; reviewing evidence to refresh the witness’s recollection; identifying lines of questioning and potential cross-examination; telling the witness to testify to only what they remember; and answering the question posed without volunteering information.

“Focusing on having a witness tell the truth is always the best advice,” advises Jeanne M. Huey, Dallas, TX, cochair of the ABA Litigation Section’s Ethics & Professionalism Committee. “It is our job as attorneys to work with the facts and not create them,” explains Joseph V. Schaeffer, Pittsburgh, PA, cochair of the Litigation Section’s Pretrial Practice & Discovery Committee.

The Impact of Remote Technology

Opinion 508 acknowledges that “[t]he task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously coach witnesses in new and ethically problematic ways.” As technology advances and more case activities are accomplished remotely, attorneys need to be conscious about potential ethical issues that may arise in remote proceedings when preparing a witness or conducting a deposition. “Remote proceedings can create new opportunities for mischief. For example, the digital note passing, text messaging, emails, and chat functions that can make it harder to detect,” Schaeffer offers.

Despite identifying certain risks that come along with remote depositions, however, the opinion notes that rules which constrain witness coaching extend to all testimonial contexts, regardless of format. Lawyers always have a duty to comply with the Model Rules of Professional Conduct and the rules of the court that prohibit witness coaching in all testimonial contexts. Remote coaching, like its historical precedent, puts the perpetrating lawyer at risk of adjudicative reprimands, disciplinary sanctions, and court-ordered sanctions.

The opinion explains that it is imperative for lawyers and decision makers to consider prophylactic measures designed for use in remote proceedings to prevent and detect instances of unethical coaching and misconduct. The Committee suggests creating structure in remote proceedings in advance by way of agreement, court order, or by collectively adopting behavioral norms that will create more transparency and provide helpful guidelines for lawyers to avoid unethical conduct.

“Remote proceedings are here to stay due to convenience, efficiency, and being cost-effective,” Huey believes. “A uniform set of instructions from local or state bars may help with these issues,” she adds. But lawyers and litigants also have the ability to protect themselves. “Parties should set boundaries beforehand regarding conduct of the deposition so there is no confusion over conduct,” Schaeffer suggests.