By Eric Deitz
A recent ABA ethics opinion addresses the demands that arise when preparing a client to testify and during their testimony. The ABA issued Formal Opinion 508 on August 5, 2023.
While not binding in California, the opinion nonetheless offers valuable guidance to California attorneys on how to conduct themselves ethically when preparing a client to testify. In addition to distinguishing between proper witness preparation and unethical coaching, the opinion addresses how greater acceptance of remote testimony has increased the risk of improper behavior.
As the opinion notes, the duty of competence obligates an attorney to prepare a client to testify.[1] A failure to do so may constitute a violation of Model Rules 1.1 and 1.3.
The authors of Formal Opinion 508 offer a list of acceptable practices when preparing a witness. For example, a lawyer may:
- remind the witness that they will be under oath
- emphasize the importance of telling the truth
- explain that telling the truth can include a truthful answer of “I do not recall”
- explain case strategy and procedure, including the nature of the testimonial process or the purpose of the deposition
- suggest proper attire and appropriate demeanor and decorum
- provide context for the witness’s testimony
- inquire into the witness’s probable testimony and recollection
- identify other testimony that is expected to be presented and explore the witness’s version of events in light of that testimony
- review documents or physical evidence with the witness, including using documents to refresh a witness’s recollection of the facts
- identify lines of questioning and potential cross-examination
- suggest choice of words that might be employed to make the witness’s meaning clear
- tell the witness not to answer a question until it has been completely asked
- emphasize the importance of remaining calm and not arguing with the questioning lawyer
- tell the witness to testify only about what they know and remember and not to guess or speculate
- familiarize the witness with the idea of focusing on answering the question, i.e., not volunteering information.
By contrast, counseling a witness to offer false testimony violates multiple ethical rules, including the duty of candor to the tribunal (Model Rule 3.3) and fairness to other parties and counsel (Model Rule 3.4). The opinion discusses both overt coaching and more subtle forms of unethical behavior, like “speaking objections” or “suggestive objections” that may interfere with another party’s access to evidence.
Particularly timely are the observations related to misconduct in a remote setting. Increased acceptance and use of remote testimony in the past few years has resulted in additional opportunities for unethical actions. While perhaps more subtle than a kick beneath a conference room table in response to an answer an attorney does not like, multiple lawyers have faced discipline for unethical conduct when off-camera during remote testimony.
Formal Opinion 508 concludes with examples of how an attorney may respond when examining an improperly coached witness. As the authors of the opinion note, although the following are not required under the Model Rules, they may prove useful and are supported by decisional authority:
- Skillful cross-examination
- Court orders directing uninterrupted testimony
- Motions to terminate or limit a deposition or for sanctions
- Inclusion of protocols in remote deposition orders, scheduling orders, and proposed discovery plans
- Administrative orders governing the conduct of remote depositions
- Inclusion of remote protocols in trial plans and pretrial orders
- Development of guidelines and best practices for conduct in remote proceedings
- Professionalism/Civility/Courtesy Codes
These techniques, in particular those that foster transparency with regard to the conduct of remote testimony, may help avoid or mitigate the effects of unethical witness coaching.
[1] Since November of 2018, the numbering of the California Rules of Professional Conduct have largely mirrored those of the ABA Model Rules of Professional Conduct. As the contents of the specific rules cited herein are substantively similar, the conclusions reached by the authors of Formal Opinion 508 are relevant to California attorneys, as well.
