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

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