The ABA Standing Committee on Ethics and Professional Responsibility, (the Committee”) recently issued Formal Opinion 508—which highlights the differences between proper witness preparation and unethical “coaching.” The Opinion also sheds light on how remote platforms have paved the way for easier and less detectable means of improper coaching.
What is allowed?
Discussing testimony with your clients can become necessary to their representation, but a lawyer cannot seek to improperly influence the testimony—and there is no bright line rule to make the distinction. You must be thorough in your witness preparation or else fall short of your duty of competence. It is always permissible for lawyers to remind their clients to tell the truth during witness preparation. Similarly, it is acceptable practice to remind your client that they are under oath, explain to them that a truthful answer could be “I do not recall,” suggest proper attire, decorum, and demeanor, explain the nature of the testimonial process and purpose of the deposition. It Is likewise proper for the lawyer to provide context for the witness’s testimony, to inquire into the witness’s probable testimony and recollection and even identify other testimony that is expected to be presented and explore the witness’s version of events considering that testimony.
Witness preparation conduct that crosses the ethical line
Interaction with witnesses before and during testimony can both raise ethical issues. Model Rule 3.4(b) prohibits a lawyer from advising or assisting a witness in giving false testimony (and probably Model Rule 1.2(d) and Model Rule 3.3(a)(3) as well). The Committee points out that encouraging false testimony can occur even if a lawyer does not instruct the witness to lie—such as telling a witness to downplay facts (such as the number of times they met with the lawyer to prepare). Lawyers must be careful when suggesting words to use or avoid, making sure that the taking of such advice does not result in the delivery of false testimony. Likewise, allowing your client to testify to fabricated evidence is an ethical violation. It is also unethical for lawyers to advise clients or witnesses to disobey a court order regulating discovery or the trial process, offering an unlawful inducement to a witness, or procuring a witness’s absence from a proceeding.
Conduct during witness testimony that crosses the ethical line
Refining witness testimony during trial or deposition can also present ethical considerations. Manipulating testimony that is actually in progress would generally violate Model Rule 8.4(d)—conduct prejudicial to the administration of justice. Model Rule 3.4(c) would also be violated by failing to adhere to a court order restricting coaching behavior. Many jurisdictions, for example, have specific rules about the content of objections made during a deposition. “Speaking” or “suggestive” objections go beyond stating the basis for the objection and are suspected of being intended to impede the deposing lawyer’s discovery. Objections should not be used to instruct a witness how respond to the questions. Lawyers must also avoid physically signaling to their witnesses during testimony.
Formal Opinion 508 also addresses the fact that remote platforms and other technology provide ample opportunity for lawyers to secretly tell witnesses what to say or signal what not to say during proceedings. With changes in the legal practice, it is not uncommon that a witness, lawyer, and adjudicative officer could be sitting in three different locations during a remote proceeding. Sitting “off camera” makes it relatively easy to signal a witness without being detected. While it is improper for a lawyer to text or otherwise message a witness in the middle of a proceeding, one can see how it is effortlessly accomplished. Lawyers have a duty to maintain a degree of technological competence. Understanding the risks involved with coaching in remote settings will allow lawyers and adjudicative officers to structure remote proceedings in a way that will help to deter its occurrence and increase detection.
The Committee concludes by suggesting several approaches to systematically address such conduct, though it points out that the approaches are not required under the Model Rules. Suggested methods include skillful cross-examination (questioning the witness as to the extent of any coaching), court orders directing uninterrupted testimony, and inclusion of protocols in remote deposition orders, scheduling orders, and proposed discovery plans.