Legal ethics of coaching witnesses: how far can you go?

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From the September 25, 2006 Massachusetts Lawyers Weekly .
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Opinio n
Legal ethics of `coaching' witnesses : how far can
you go?
It is clear that Daniel Petrocelli, the highly skilled lawyer for Jeffrey Skilling, one of the Enron
defendants, thoroughly prepared his client before he took the stand to testify in his own
defense .
Undoubtedly, he showed Skilling copies of documents, investigative reports, prior statements,
and other witnesses' statements and testimony, and advised him about choice of language h e
might use when answering questions
on direct or cross-examination ,
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He also surely told Skilling how to
communicate his perspective on the
charges whether or not he was asked
a specific question about that point of
view .
In the Enron prosecutions, as in other
highly public cases involving
accomplished lawyers, it is well
understood by the opposing counsel
in the case, the judge, the media and
even the public that, before witnesse s
take the stand to testify, the lawyers have carefully prepared them for the questions that likely
will be asked on both direct and cross-examination, and how to answer those questions in such
a way that is more likely than not to benefit the client in the case on trial .
In addition, a lawyer also will advise the client or witness on what to wear, what his demeanor
should be toward the questioner and how to project in other ways that will be appealing to a jury .
Witness preparation may, and usually does, include rehearsal of testimony .
Yet, no matter how skilled the lawyer and how intelligent and well-prepared the client, testimony
does not always follow what is planned, as the following description of Skilling's testimony
makes clear:
"For most of the time on the witness stand, Mr. Skilling seemed smaller than life . He often wore
a timid, tentative facial expression, a little like a third grader hoping not to be reprimanded by the
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Massachusett s Lawyers Weekly : Archives Page 2 of 5
teacher. But at least once a day he would have momentary meltdowns, and all the bitterness,
sarcasm and self-pity would creep to the surface -- only to be damped back down by Mr .
Petrocelli. In the course of answering a question about Mr . Fastow's crimes, for instance, Mr .
Skilling took an unprompted swipe at the F .B .I. - an incredibly foolhardy thing to do in front of a
jury . When you're on the witness stand, fighting for your life, there is nothing more important
than being disciplined in what you say and how you act . . ." 1
The rules
There is nothing wrong with preparation of a witness . Lawyers who litigate, and even the public,
are well aware that witness-coaching is, as one commentator suggested, "not just
commonplace, it's endemic ."
However, most lawyers prefer to describe what they do as "witness preparation" rather than
"coaching," In fact, the failure to adequately prepare a witness might fall with the scope of legal
malpractice and/or a violation of the ethical rules . 2
The key, insofar as the ethical rules are concerned, is that the foundation of the testimony must
be what the witness can truthfully testify and not just what the lawyer or the client thinks would
be best for the case or the client .
There are several ethical rules that specifically apply to witness preparation . These are Rules
1 .2(d), 3 .3 (a)(3), 3 .4 (b) and 8 .4 (c), (d) and (h) .
* Rule 1 .2(d) prohibits a lawyer from counseling or assisting a client in a fraudulent or criminal
act. Concocting false testimony is a fraud on the court .
* Rule 3.3(a)(3) prohibits a lawyer from knowingly offering evidence that he knows to be false
and requires that a lawyer who knows that a witness presented by the lawyer has offered
material evidence that the attorney comes to know was false, must take reasonable remedial
measures including, if necessary, disclosure to the tribunal ,
* Rule 3.4(b) prohibits a lawyer from falsifying evidence and/or counseling or assisting a witness
to testify falsely .
* Finally, Rule 8 .4(c) makes it professional misconduct for an attorney to engage in conduct
involving dishonesty, fraud, deceit or misrepresentation, and Rule 8 .4(d) makes it professional
misconduct to engage in conduct that is prejudicial to the administration of justice . In addition, in
Massachusetts, Rule 8 .4(h) makes it professional misconduct for a lawyer to engage in any
other conduct that adversely reflects on the lawyer's fitness to practice law .
Blatant misconduct
There also are some clear lines that define what cannot be done . For example, in the federal
prosecution of Zacarias Moussaoui, everyone, including the judge, the prosecution and the
defense were shocked and outraged when it became known that a lawyer from th e
Transportation Security Administration, Carla Martin, had allegedly "coached" seven witnesses,
all of whom were scheduled to testify about aviation security .
The Martin situation was, in many ways, extraordinary because, if true, her "coaching" violated
Rule 615 of the Federal Rules of Evidence . This rule, entitled "Exclusion of Witnesses," allows a
judge to sequester witnesses so that they cannot hear the testimony of other witnesses .
As the advisory committee note to this rule states : "The efficacy of excluding or sequestering
witnesses has long been recognized as a means of discouraging and exposing fabrication,
inaccuracy, and collusion ." citing 6 Wigmore Sects . 1837-1838 .
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Massachusetts Lawyers Weekly : Archives Page 3 of 5
In addition to this rule, on Feb . 22, in a pretrial order, the trial judge explicitly barred all but two of
the prosecution's witnesses from being present in the courtroom prior to their own scheduled
testimony and barred all but these two witnesses from reviewing transcripts of other witnesses .
Martin is not only alleged to have violated Rule 615 and the judge's specific order, but she left an
e-mail trail of her breach . In these e-mails, Martin informed the witnesses of her opinion that the
prosecutors, in their opening statements, had left "big gaps in the case ." She advised witnesses
that they had their work cut out for them, that they had to get around certain problems with the
evidence, and that "we MUST emphasize the deterrent value of the measures ."
One of the witnesses informed the prosecutors of the e-mails and the government subsequently
came forward and reported her alleged misconduct . After a hearing, the judge, who described
Martin's conduct as "egregious," barred these particular witnesses from testifying in this case .
According to published sources, she presently is under investigation by both the U .S. Attorney's
Office and a lawyer disciplinary board in Pennsylvania, where she is a member of the bar .3
Such blatant misconduct, while very unusual, is not unheard of . In Matter of Foley, 439 Mass .
324 (2003), the respondent lawyer admitted to assisting a client4 in concocting a false story
intended to raise a defense in a gun-carrying case . Even though the false testimony never was
presented in court, it was communicated to the assistant district attorney in the case prior to
being abandoned by the lawyer.
In Foley, the lawyer not only did not discourage his client about testifying falsely and expressed
no reservations about his doing so, but planted the seeds for the fabricated defense with the
prosecutor and, over a two-week period, proceeded to manufacture a scenario to explain the
false testimony .
Even though he subsequently abandoned this ill-conceived plan, the court considered his
misconduct to be "serious and deliberate ." Foley was suspended for three years for his
misconduct, which the court described as an affirmative fabrication of a defense and the
solicitation of false testimony to support it .
There are two other cases of note in Massachusetts where the lawyers clearly crossed the lines
drawn in the Rules of Professional Conduct .
In Matter of Gross, 435 Mass. 445 (2001), the court suspended a lawyer for 18 months for
soliciting a client and alibi witness to engage in an impersonation scheme before a court, and in
Matter of McCarthy, 416 Mass. 423 (1993), the court imposed a one-year suspension for a
lawyer who elicited false testimony and presented false documents in an administrative
proceeding .
Proceed with caution
There are a few particular areas in which lawyers should be especially careful .
First, although a lawyer is prohibited from counseling or assisting in conduct he knows is
criminal or fraudulent, he still may discuss the consequences of any proposed course of conduct
with a client and may counsel or assist a client to make a good-faith effort to determine the
validity, scope, meaning or application of the law. (Rule 1 .2(d) )
As Comment [6] notes, however, "there is a critical distinction between presenting an analysis of
legal aspects of questionable conduct and recommending the means by which a crime or fraud
might be committed with impunity ."
I always advise my lawyer clients to make clear to their clients that they cannot advise them
regarding any future or proposed criminal conduct, and, to go one step further, tell them they
should not commit the proposed criminal or fraudulent conduct .
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Massachusetts Lawyers Weekly : Archives Page 4 of 5
Second, while a lawyer shall not offer evidence he knows to be false, the attorney has discretion
to refuse to offer evidence he reasonably believes to be false, (Rule 3 .3(c)) This is an area
fraught with danger and must be handled very carefully . Clients may not fully grasp the
ramifications of presenting false testimony and must be advised of the potential consequences .
Finally, the general misconduct rules - Rules 8,4(c), (d) and (h) (in Massachusetts only) -
have been broadly interpreted to include a wide variety of conduct and should be reviewed
carefully when any of the issues raised above in this article arise .
Conduct that may not fit into Rules 1 .2(d), 3.3 and 3 .4, may very well fit into the broader
category of professional misconduct prohibited in Rule 8 .4 .
Endnotes
1 Brad DeLong's Semi-Daily Journal : April 17, 2006, quoting Joe Nocera on Jeffrey Skilling in
the New York Times .
2 Rule 1 .1 of the Rules of Professional Conduct defines competent representation as requiring
"the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation, "
3 "Investigations, Lawsuits Still Dogging 9/11 Lawyer," by Jerry Markon, Washington Post, July
10, 2006, p . B01 .
4 The "client" actually was an undercover agent wearing a wire who was part of a federal
investigation of possible corruption in the Boston Municipal Court and whose crime was a
contrived charge, a fact unknown to the arresting officers, the prosecutors or the court at the
time. The lawyer admitted his misconduct before a federal grand jury, and while he was neither
indicted nor charged with a crime in the investigation, his conduct was reported to the Office of
Bar Counsel, which brought disciplinary charges against him .
Arnold R. Rosenfeld is of counsel in the Boston office of Kirkpatrick & Lockhart, Nicholson,
Graham . He also currently is a visiting professor at Boston University School of Law and is an
adjunct professor at Northeastern University School of Law . He served as chief bar counsel of
the Board of Bar Overseers from 1991 to 1999 .
@ 2006 Lawyers Weekly Inc., All Rights Reserved .
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