Don't Walk the Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial

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I. Introduction

"If you have to ask whether you are crossing the line, then you probably are standing too close to it. "1 Legal ethics demands continuous line-drawing and evaluation of attorney conduct. Unfortunately, the Model Rules of Professional Conduct and the corresponding state rules provide little guidance for the litigator's daily practice of law. This is especially true with regard to the attorney's role in preparing witnesses for deposition and trial. In fact, witness preparation is the "dark secret" of the legal profession because it is neither taught in law school nor directly regulated, and it is rarely litigated or even discussed in scholarly literature.2 Yet witness preparation occurs in practically every lawsuit,3 since an attorney would be derelict in his professional duties if he did not prepare his witnesses for deposition and trial.4 Moreover, many judges and commentators have furnished advice on what an attorney can and should do to prepare witnesses for trial.5

Despite this, little is said about what an attorney should not do when preparing a witness,6 except for the obvious warning to avoid suborning perjury.7 Tension exists between an attorney's ethical duty to proffer only truthful evidence and an attorney's duty to represent his client zealously, because under the latter an attorney's allegiance is to the client, not the truth.8 Which duty prevails when allegiance to a client means damage to the truth? "In pursuing [the] role of zealous advocate, it remains unclear to what lengths the attorney may go in distorting or hiding the truth."9 When coaching witnesses, attorneys often suggest "better" answers which either contradict the witness's original answer or "subtly but effectively shade, dissemble or distort the truth. "lo

Part I of this Note discusses the rules of professional conduct applicable to witness preparation and the role of witness preparation in litigation, as well as provides a few initial examples of attorney behavior that raises ethical questions. Part II identifies categories of witness coaching and their ethical implications, including suborning perjury, improperly lecturing on the law, inappropriately refreshing the witness' memory, suggesting word choice or demeanor that affects the witness's testimony, and affecting testimony through repeated rehearsals. Finally, Part III offers steps for the proactive attorney to take to ethically prepare witnesses.

A. Rules of Professional Conduct

The American Bar Association has promulgated the Model Rules of Professional Conduct (and its forerunner, the Model Code of Professional Responsibility), which outlines the ethical obligations of attorneys. Nearly all of the states have either adopted a version of the Model Code or Model Rules." A few states do not follow either, but it appears that their rules are substantially similar to either the Model Rules or the Model Code.l2 The Model Rules and the Model Code contain only a few provisions generally applicable to witness preparation. For instance, Model Rule 1.29(d) states that in the scope of representation of a client, a "lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent."13 Model Rule 3.4(b) mandates that a "lawyer shall not . . . assist a witness to testify falsely."14 Although Rule 3.4 does not specifically state when this mandate applies, it should apply to witness preparation.l5 Model Rule 8.4(c) states that "[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. SS 16 Similarly, the Model Code states that in the representation of a client, a lawyer shall not counsel or assist a client in conduct that the lawyer knows to be illegal or fraudulent, nor participate in the creation or preservation of evidence when he knows, or it is obvious, that the evidence is false."7

From the language of the rules, it seems that the only conduct in which the attorney cannot engage is subornation of perjury or creation of false evidence. …

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