The lines between witness preparation and improper coaching are gray. According to the ABA, “[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.”
To clarify these lines, last year the ABA’s Standing Committee on Ethics and Professional Responsibility Formal Opinion 508- The Ethics of Witness Preparation.
As the ABA’s committee recognized, witness preparation implicates numerous Model Rules of Professional Conduct, including Rule 1.2 (Scope of Representation and Allocation of Authority between Client and Lawyer), Rule 3.3 (Candor Toward the Tribunal), Rule 3.4 (Fairness to Opposing Party and Counsel), Rule 4.4 (Respect for Rights of Third Persons), and Rule 8.4 (Misconduct). With the Maryland Attorneys’ Rules of Professional Conduct modeled after and numbered similarly to the ABA’s, Opinion 508 surely applies to us.
In Formal Opinion 508, the committee identified 15 ethical “do’s” for lawyers preparing witnesses to testify.
These “do’s” include reminding the witness that they will be under oath; explaining that telling the truth can include a truthful answer of “I do not recall;” discussing case strategy and procedure; asking about the witness’s probable testimony and recollection; identifying testimony from others and exploring the witness’s version of events; reviewing documents with the witness;, refreshing a witness’s recollection of the facts; identifying lines of questioning and potential cross-examination; and suggesting choice of words that might be employed to make the witness’s meaning clear.
The list is comprehensive, and an excellent road map for items to consider when meeting with witnesses in preparation for testimony.
As expected, the committee also recited a list of “don’ts.” The “don’ts” list is largely the same as Maryland Rule 19-303.4 (Fairness to Opposing Party and Attorney), which prohibits, among other behaviors, obstructing another party’s access to evidence; counseling or assisting a witness to testify falsely; or offering an improper inducement to a witness to testify or refuse to testify.
The committee discussed unethical behaviors in both pre-testimony meetings and during testimony, with a specific discussion on remote proceedings.
Formal Opinion 508’s reminders were necessary because lawyers took advantage of the circumstances available during remote proceedings. For example, an Arizona lawyer was suspended for using the chat feature to instruct a client how to answer questions during cross examination at trial. In re Claridge, PDJ 2021-9088 (Ariz. Jan. 21, 2022).
In another case, 37 Barksdale School Portraits, LLC v. Williams, 339 F.R.D. 341 (D. Mass. 2021), the lawyer was disqualified for coaching a witness during a remote deposition. Worse yet, the deposition witness’s testimony and the lawyer’s coaching were played to the jury.
While the Maryland Supreme Court has, in the past, disciplined lawyers for falsifying or hiding evidence, I have yet to see a Maryland lawyer sanctioned for improper witness coaching during a remote proceeding. I would like it to stay that way.
This article originally appeared in The Daily Record on March 6, 2024.
