By Clare Pastore[1]

Articles are provided regularly by LACBA’s longstanding Professional Responsibility and Ethics Committee. 

All competent lawyers--- and even some incompetent ones---know they must prepare witnesses who will testify at trial or deposition. Lawyers must make sure witnesses know what the process is, who will question them and about what topics, what they are likely to be asked, and what to do when a difficult question is asked. Every lawyer likewise knows that somewhere there is a line between ethical, competent, necessary witness preparation and unethical, improper witness coaching.  The precise location and parameters of this line, however, are elusive.

In August 2023, in Formal Opinion 508 (hereinafter “Opinion”),[2] the ABA Standing Committee on Ethics and Professional Responsibility offered some helpful guidance on how to stay on the right side of the line.  Perhaps even more helpfully, the Opinion collects cases and secondary sources offering examples of good and bad (sometimes jaw-droppingly bad) practice.  It also offers discussion and useful suggestions for handling the potential ethics issues surrounding witness coaching that can arise in remote settings, such as online depositions or court hearings.  The Opinion is well worth perusal by trial lawyers and those whose practice includes depositions.

The Opinion begins by describing a 2010 scene from the popular Old West television program Deadwood, in which a lawyer all but explicitly advises his client, who killed the frontiersman Wild Bill Hickok in a barroom, to fabricate a justifiable reason for the killing. The client says “I’m a hard case for you, counselor. . . . [E]veryone in there saw me shoot him.”  Undaunted, the lawyer explains, “I’m asking you if what happened in that saloon was vengeance, for the death of a family member? Possibly a brother in Abilene. Or the like.”

Older generations of lawyers may recall a very similar scene in the classic 1959 movie Anatomy of a Murder, in which James Stewart as a defense lawyer gives “the lecture” to a criminal defendant client explaining that if a killing was “excusable,” the defendant would not be guilty.  After the defendant asks whether being “crazy” would suffice, the lawyer takes his leave, telling the client to “see if you can remember just how crazy you were.”[3]

Both of these scenarios call to mind the famous 1880 admonition from a New York court in sanctioning an attorney who dictated a witness’s responses to all questions at a deposition, among other transgressions: “[An attorney’s] duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.”[4]

The ABA Opinion notes that witness preparation implicates numerous ethical rules, including ABA Model Rules of Professional Conduct 1.2 (Scope of Representation and Allocation of Authority), 3.3 (Candor toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), 4.4 (Respect for the Rights of Third Persons) and 8.4 (Misconduct).  While the Model Rules are not binding in our state, the California Rules of Professional Conduct (CRPC) mirror the Model Rules in content and numbering, with some differences. For purposes of this article, however, the differences are largely immaterial because neither the ABA Opinion nor the analysis of what is permissible in witness preparation depend on the precise wording of any Rule. Indeed, arguably the California State Bar Act’s admonition that in serving clients a lawyer must “employ. . . those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer. . . . “[5] is on its own sufficient to prohibit a lawyer’s assistance to a client in testifying falsely or in fabricating a claim or defense.

The ABA Opinion lists fifteen permissible witness preparation activities, including reminding witnesses to tell the truth, “inquiring into the witness’s probable testimony and recollection,” identifying other expected testimony and “explor[ing] the witness’s version of events in light of that testimony,” and reminding the witness not to volunteer information.  Somewhat more controversially, the Opinion notes that attorneys may “suggest choice of words that might be employed to make the witness’s meaning clear,” while citing the Restatement of the Law Governing Lawyers § 116, comment (b), which warns that while words can be appropriate, “a lawyer may not assist the witness to testify falsely as to a material fact.”[6]

Perhaps more helpfully, the Opinion spells out a number of unethical witness preparation activities, including: counseling or assisting a witness in giving false testimony, “advising a client or witness to disobey a court order regulating discovery or trial process, offering an unlawful inducement to a witness, or procuring a witness’s absence from a proceeding.”[7]  Better yet, the Opinion collects cases with specific examples of behavior found unethical by courts, such as “tell[ing] a witness to ‘downplay’ the number of times a witness and a lawyer met to prepare for trial,[8] encouraging a client to lie about the site of an accident,[9] and (in a California case) “programming” a witness’s testimony.[10] Many other examples and citations are included in the Opinion’s footnotes.

The Opinion also takes on the related but distinct issue of unethical conduct during a witness’s testimony, noting that “[o]vertly attempting to manipulate testimony-in-progress would in most situations constitute at least conduct prejudicial to the administration of justice in violation of Model Rule 8.4(d).”[11]  This can be done by making “speaking objections,” which is the practice of objecting in a manner designed to suggest an answer to a witness, or by coaching the witness during breaks in the deposition or testimony.  

The risk of coaching witnesses during breaks and therefore the permissibility of attorneys taking breaks to confer with deponents or conferring during lunch and other breaks were notably addressed in two often-cited federal district court cases taking opposite positions. In 1993, in Hall v. Clifton Precision, [12] a Pennsylvania judge established strict guidelines prohibiting conferences between the defending lawyer and the deponent during depositions, stated that any such conversations that did occur “are a proper subject for inquiry by deposing counsel to ascertain whether there has been any witness coaching, and, if so, what” and that any such conferences shall be noted on the record.[13]  A few years later, a contrary decision was rendered by a federal district judge in Nevada in In re Stratosphere Corporate Securities Litigation, in which the court acknowledged the coaching concern animating the Hall decision, but found that the Hall court’s approach unduly impinges on the right to counsel and that “the right of counsel does not need to be unnecessarily jeopardized absent a showing that counsel or a deponent is abusing the deposition process.”[14] Although neither case has been cited in a published decision in California state courts, a recent law review article explains that the cases have become the two most frequently cited on the topic of how courts should handle the question of conferences between attorneys and deponents during depositions and that there is little coherence to the decisions citing either opinion, with Hall not always followed in the Third Circuit and Stratosphere likewise frequently ignored in the Ninth.[15] The ABA’s recent opinion comes down squarely against the Hall position and notes that “although there is no express ethical prohibition on communications between witness and counsel during a break in testimony, adjudicative officers have, at times, exercised control over these circumstances, including entering specific orders and imposing deposition guidelines and/or sanctions.”[16]

The Hall case, and the topic of conferring with witnesses during a deposition, was addressed by the Los Angeles County Bar Professional Responsibility and Ethics Committee (PREC) in a 1999 Ethics Opinion.[17] Although the PREC opinion does not mention Stratosphere, it echoes the concerns of the Stratosphere court in concluding that such conferences are not prohibited and indeed may sometimes be ethically required:

[T]here is no ethical duty to refrain from interrupting a deposition to consult with the client or to consult with a client during breaks or recesses in the client's deposition. Indeed, in some circumstances, an attorney may have an ethical duty to interrupt the deposition to privately consult with the client. For example, if the client is testifying in a manner that the attorney knows is intentionally misleading or false, the attorney has an ethical duty to interrupt the deposition to consult with the client to address the truthfulness of the client's testimony, admonish the client to tell the truth, and explain the adverse consequences of perjury. See People v. Johnson (1998) 62 Cal. App.4th 608 (When faced with a client who indicates he will commit perjury, an attorney must first try to persuade the client to testify truthfully.) Similarly, if a deposition question calls for the disclosure of privileged information, it may be necessary for the attorney to interrupt the deposition to consult with the client to determine the scope of the privileged testimony and clarify what answer, if any, can be given that would protect the privileged information from inadvertent disclosure.[18]

The final and perhaps most useful part of the recent ABA Opinion deals with “Misconduct in Remote Settings,” such as depositions or court testimony taken over Zoom or similar platforms. Cases are beginning to multiply in which courts must deal with attorneys who text witnesses during their testimony, pass notes because they are off camera, surreptitiously use the online chat function to coach witnesses, and the like. One of the first decisions addressing such improper remote deposition behavior is a 2021 Massachusetts federal case in which the judge found over 50 instances of improper coaching during a remote deposition.[19] The attorney was publicly reprimanded, removed from the case (losing a $65,000 fee), required to spend unbilled time bringing the replacement lawyers up to speed, and required to pay $22,000 in legal fees to opposing counsel.[20] In addition to disqualifying the offending lawyer, the judge ordered that opposing counsel be allowed to play and highlight to the jury the recorded exchanges of counsel’s improper comments.[21]

The ABA Opinion helpfully lists a variety of precautions that can be used to avoid and address such misbehavior. In addition to “skillful cross-examination,” these include “court orders directing uninterrupted testimony,” and protocols in deposition orders, scheduling orders, discovery plans, trial plans, pretrial and orders, as well as administrative orders governing remote depositions and development of guidelines and best practices.[22]  The National Center for State Courts and the Washington State Supreme Court have already released best practices and sample orders for these situations.[23]

Increasing attention to how to avoid abuses of the witness preparation and remote testimony situations can only be a good thing for lawyers trying to stay inside the ethical lines and outside the disciplinary system.  The ABA’s opinion should be a must-read for all conscientious lawyers.