By Jeffrey A. Curran, Esq.

So there I was, sitting at my desk having a perfectly enjoyable afternoon of responding to discovery requests  when I get a call from a friend asking if I could write something on the topic of ethics for her group of legal professionals. “Sure,” I say, “but what is there that your group members could possibly want to hear from me that they do not already know, noting they are undoubtedly already the cream of the ethical and professional crop ?”

Tough question indeed, learned readers. I ran through all sorts of possibilities until finally settling on the piece of artistry you now have before you. The question of when witness preparation becomes “coaching” and crosses the line into unethical behavior is something that we all encounter while at the same time is rather hard to define. Thus, I will start with a true story.

I was defending a guy who had been in a car wreck and had brought his own injury claims through his personal counsel (because, being the ethical lawyer I am, I foresaw the potential detrimental impact on his personal claims should the other party’s claims ever become amenable to resolution). We had progressed to the point where the depositions of both parties were to occur the next day, and we met with our common client.

The meeting went something like this (with only mild paraphrasing):

OTHER LAWYER: So, tell me in your own words how the accident happened.

CLIENT: Well, I was at the intersection and I entered it about here (indicating), and then…

OTHER LAWYER: Wait a minute. Are you sure it didn’t happen like this (indicating something essentially the exact opposite of what client had just indicated)?

CLIENT: Well, I, uh…

OTHER LAWYER: And wasn’t the other guy here (indicating), doing this (more indicating)? Because that way, there’s no way anybody can say you were doing anything wrong. Understand?

CLIENT: Uh, yeah…I think that is exactly what happened!

ME, in stunned disbelief: Uh…

I will admit I panicked. I was a very young lawyer at the time and literally did not know what to do. I knew I could not do or say anything that I learned in confidence that would harm my own client’s case, and I also recognized that there was not a lot I could do that would not also jeopardize my then-firm’s relationship with the insurance carrier that had retained us (at the time I had exactly zero pull with the insurance carrier and not enough experience with them to have established any real relationship). What I did was allow it to proceed when, in fact, what I should have done was stop the discussion and go back into what the client had started to relate as being the story. As a practical matter, it would have made no difference at that point because the client had clued in to what the other lawyer was having him do and why.  But I still feel that I should have handled it differently at the time, and thus this subject has always been at the forefront of my legal mind.

There are not really any rules that deal directly with such a situation, other than some of the Model Rules of Professional Conduct (which have been adopted by every state, so far as I can tell). The first is Rule 3.3 (Candor Toward the Tribunal), which states basically that a lawyer should not lie to the court, assist other people in lying to the court, or misrepresent anything (factual or otherwise) to the court. If the lawyer knows that someone is going to do that, the lawyer must take remedial measures—including possibly disclosure to the court. This is where (to me, anyway) it gets a little tricky when you learn the information under the cloak of attorney-client privilege. Under Rule 1.6, you are not supposed to divulge any confidential information unless the fraud “is reasonably certain to result in substantial injury to the financial interests” of another. Under the above scenario, I do not know that the information was “reasonably certain” to result in anything, and on later reflection I decided I could not disclose it. I do not know if you would come to the same conclusion, but there was at least some thinking that went into it.

Another rule that would seem to apply is Rule 3.4–Fairness to Opposing Party and Counsel. But under that rule, a lawyer shall not “falsify evidence, counsel, or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.” Under the above scenario, I was not doing any of that myself. But I think where I may have been tripped up as to my ethical obligation is under Rule 8.3—reporting the other lawyer’s clear violation of some of the above rules following termination of the action (so as not to violate Rule 1.6). But as mentioned, I was young and frankly a bit shell-shocked. Not an excuse–rather just an explanation. I still should have taken action, but just did not. In the long run, it did not make any practical difference, but such is not really the measuring stick of what is right and what is not, now is it?

“Coaching” v. “Preparing”
Then what, if anything, can be ethically done in the preparation of a witness? Just when does it become “coaching”? Why does a lawyer even need to “prepare” a witness at all if, in fact, the witness is simply going to say what they saw/heard/felt, etc.? This is both easy and hard. In his excellent and thorough treatise “Examination of Witnesses,” Kenneth M. Mogill points out that the answer lies in the combination of both the nature of the adversarial system and the ethical requirement to represent the client completely.  The adversary system requires that each party present the facts in the light most favorable to that party, and the obligation to represent the client completely requires the advocate to do whatever is feasible to prepare the witness for examination.

But bear in mind (as you always must) that you cannot present perjured testimony. Consider the above example: clearly, the testimony was perjured at least in part because the client was essentially told to say something different from what he recalled. But when you look closer, the lawyer was very clever in how it was dealt with, because every subject ended with “wasn’t that what happened” followed by the client’s agreement.

It is not unlike the classic ethical dilemma brought forth in the scene from the classic movie Anatomy of a Murder, where Jimmy Stewart as the lawyer tells Ben Gazzara’s character (who has been accused of murder) that insanity is a defense that may get him off the hook and maybe they can talk again tomorrow about how crazy Ben is (when, of course, the guy is not crazy—the lawyer is just trying to tell him to get crazy so he can get off).

Client v. Witness and Additional Issues
Another twist in the action comes when it is the client who is being coached as opposed to a witness. This is mostly due to the additional ethical obligations involved with the attorney-client privilege. (See above true story and Jimmy Stewart reference.) It does not make it any less unethical, just less likely that the perpetrator will get caught. You simply cannot coach a witness to say something that is false or misleading. What about when you find out during preparation of a witness or client that they are going to change a story after you have been preparing them? Where it is a witness, you can point that out fairly easily. But let’s say your client has a story that he or she then changes, and you know the new story is not truthful. At that point, when your client is going to testify falsely despite your preparing him or her and counseling him or her to do otherwise, you still have to labor under the ethical “burden” (though really, solid ethics should never be viewed as such) of not doing anything that will hurt your client’s case. If that situation cannot be rectified between you and your client, you may have no ethical choice but to ask to withdraw as counsel.

Conclusion
So what, dear readers, have we learned about “preparing” versus “coaching” witnesses? First, there is a distinct and radical difference between the two as the story scenarios illustrate. A lot of times in everyday practice it is not really that easy to delineate where the line is. It is really not a hard thing in a general sense—do not tell the witness what to say, and remember to get the witness’ story first before you plant thoughts in his or her head (even if such planting is inadvertent). It seems to come down to this: preparation is where the client relates the story to you and you then take those facts and work with them. Coaching, on the other hand, is where you relate the story or even any details of the story to the client and that is a very big difference.”

Photo credit: Flickr/J D Mack