chevron-down Created with Sketch Beta.
September 11, 2023 Top Legal News of the Week

New ethics advice offers guardrails for witness preparation

Reminding witnesses they will be under oath or suggesting proper attire or demeanor before testifying in a deposition or an adjudicative proceeding is totally appropriate for lawyers. But winking at witnesses, suggesting they lie under oath or kicking them under a table during a deposition are potential ethical violations under ABA model rules.

A new ABA formal opinion explains the difference between legitimate witness preparation and unethical efforts to influence testimony.

A new ABA formal opinion explains the difference between legitimate witness preparation and unethical efforts to influence testimony.

Getty Images

Those guidelines are included in Formal Opinion 508, issued Sept. 6 by the American Bar Association Standing Committee on Ethics and Professional Responsibility. Titled “The Ethics of Witness Preparation,” the opinion provides a roadmap to help lawyers stay within the parameters of ABA Model Rules of Professional Conduct when they prepare a witness or client to testify before a deposition or other legal proceeding.

The opinion, for instance, explains the difference between legitimate witness preparation and unethical efforts to influence witness testimony, sometimes called “coaching.” At the same time, it acknowledges the distinction can be ambiguous, due to concurrent ethical duties of diligently and competently representing a client and refraining from improperly influencing witnesses.

“In some witness-preparation situations, a lawyer clearly steps over the line of what is ethically permissible,” the opinion said, listing several model rules that cover such situations. “Certain categories of lawyer activity are firmly established as unethically interfering with the integrity of the justice system and unethically obstructing another party’s access to evidence.”

Formal Opinion 508 marks the first guidance in this area since the COVID-19 pandemic in early 2020, and the subsequent growth of remote proceedings for discovery and other matters. The opinion notes that adding “the use of remote communications platforms and other technologies … provides opportunities and temptations for lawyers to surreptitiously tell or signal witnesses what to say or not say in the proceedings of a tribunal.”

“The 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,” the opinion said.

Related links: