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

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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 . http ://www.masslaw.com/subscriber/archives_FTS.cfm?page=ma/06/9250622.litm&recID . . . 3/30/2007
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 . http://www. masslaw. corn/subscriberlarchives_FT S. cfm?page=ma106192 50622 .htm&recID . . . 3/30/2007
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