Archive | Witness Preparation; Payments to Witness

Be Aware of Ethical Witness Preparation Rules

Back in 1880, the New York Court of Appeals, in In re: Eldridge,1 suspended a lawyer for writing out answers for witnesses. In its holding, the Court said that a lawyer’s duty is to extract the facts from the witness, not pour them into him; to learn what the witness does know, not teach him what […]

Reprinted with permission from the May 25, 2000 edition of the New York Law Journal ©2000 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

(1) 82 N.Y. 161 (1880)

(2) See, e.g., Richard Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995); John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277 (1989); Note, Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of Coaching 1 Geo J. Legal Ethics 389 (1987); Fred C. Zacharias and Shaun Martin, Coaching Witnesses, 87 Kentucky L. J., 1001 (1999).

(3) See: DR 6-101(A) and DR 7-101(A) of the New York Lawyer’s Code of Professional Responsibility; Model Rule (MR) 1.4(b) of the ABA Model Rules of Professional Conduct.

(4) See DR 7-102(A)(4)(6)(7); MR 1.2(d), 3.3(a)(4), 3.4(b), 8.4(b)(d).

(5) Anatomy of a Murder (Columbia Pictures, 1958)

(6) The Verdict (20th Century Fox, 1982).

(7) This case is extensively discussed in a Special Report that appeared in the ABA/BNA Lawyer’s Manual on Professional Conduct, by Joan C. Rogers, entitled Witness Preparation Memos Raise Questions About Ethical Limits, pp. 48-54, Vol. 14, No. 2 (2/18/98).

(8) One prominent ethicist observed that The Code fails to impose any significant limit on a lawyer’s conduct in preparing his own witness for trial, with the result that the propriety of the lawyer’s conduct must be defined primarily by criminal laws dealing with subornation of perjury. Bruce Green, Zealous Representation Bound: The Intersection of the Ethical Codes and the Criminal Law, 69 N.C.L. Rev. 687, 705 (1991).

(9) See D.C. Bar Formal Op. 79 (1979). Neither the nature of nor the intent underlying the lawyer’s conduct has significance so long as the substance of the testimony is not, so far as the lawyer knows or ought to know, false or misleading.

(10) With respect to discussing with a witness the applicability of law to the events in issue, the Nassau County Bar Association, in opinion 94-6 (1994), has explicitly condoned the practice of informing the client as to the applicable legal principles before getting the client’s version of the facts, as long as the lawyer in good faith does not believe that she is participating in the creation of false evidence.

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