CBA Record November-December 2023

either directly or indirectly, for the con tent or substance of their testimony, even if the payment is for the witness’s truthful testimony; likewise, paying witnesses not to testify is unethical. Model Rule 8.4(d), which prohibits attorneys from engaging in conduct that is prejudicial to the administration of jus tice, bars much of the bad behavior we see during witness testimony, including winking or sending other signals to wit nesses, kicking deponents under the table, whispering, or passing notes to witnesses during their testimony. The opinion also cites speaking objections or “suggestive” objections as examples of improper witness coaching, defining them as “statements that go beyond just stating the objection or the basis of the objection and are intended – or at least suspected of being intended – to coach the witness and impede the deposing attorneys’ discovery.” Formal Op. 508 recognizes – and likely was prompted by – the increase in these bad behaviors during remote deposi tions, while attorneys and their witnesses are in another location or locations from the questioning attorney and the court reporter. The opinion notes that attorneys have an obligation to follow all of the Rules of Professional Conduct, regardless of the testimonial context in question. The opinion closes by suggesting some systemic precautions for avoiding and addressing such misconduct, includ ing the issuance of administrative orders governing remote depositions or includ ing remote testimony protocols in trial and pretrial orders. As the opinion states, remote proceedings in particular “present distinct opportunities for surreptitious witness coaching,” but the Model Rules prohibit such behavior in all contexts.

PRACTICAL ETHICS BY TRISHA RICH New ABA Opinion Strikes at Improper Witness Coaching T he American Bar Association attempted to clarify an issue that has received a great deal of press is unethical. The ABA notes that the fol lowing are ethical and often necessary for proper witness preparation:

during pandemic-era remote deposi tions: witness preparation for testimony. In Formal Opinion 508, issued August 5, 2023, the ABA discusses various wit ness preparation tactics, including what is proper and expected, and those that are improper and unethical. Given some of the disciplinary and other cases that arose during the pan demic, it is not a surprise this issue is at the forefront of the ABA’s considerations. Unfortunately, the rise in remote testi mony has resulted in a sharp increase in complaints about improper witness coaching, and with it, formal action for the attorneys committing this behavior. For example, in The Florida Bar v. Derek Vashon James , the respondent attorney was suspended for 90 days for texting his client about her testimony while she was being deposed. In Shimkus v. Scranton Quincy Clinic Co., LLC, an attorney was sanctioned and referred to the disciplin ary commission for whispering answers and information to their client during a deposition. Another whispering attorney, in Barksdale School Portraits, LLC v. Wil liams et al. , was disqualified from continu ing to represent his client in the matter. In Formal Op. 508, the ABA begins by noting that preparing witnesses to testify is a normal and expected part of a representation, but that attorneys need to be cognizant about the difference between discussing a witness’s testimony and trying to improperly influence the testimony. While the former is necessary and will often be required for diligent and competent representation, the latter

• Reminding the witness that they will be under oath and emphasizing the importance of giving honest testimony, • Explaining that truthfully answering “I do not recall” is acceptable; • Explaining case strategy and procedure to witnesses, suggesting proper attire, demeanor, and decorum to witnesses; • Providing context for the witness’s testimony, inquiring about a witness’s likely testimony and recollections; • Identifying and discussing other testi mony that is expected to be presented and exploring the witness’s own testi mony in light of the testimony of others; • Reviewing documents or physical evidence with the witness (including using documents to assist in refreshing the witness’s recollection); • Identifying lines of questions and potential cross examination areas; • Suggesting word choice to assist in clarifying witness testimony; • Instructing witnesses not to answer questions until they are completed; • Telling witnesses not to guess or specu late; and • Familiarizing the witness with focusing on testimony that is responsive but not superfluous. On the other hand, some attorney actions are unethical. Citing Model Rules of Professional Conduct 3.4(b), 3.4(c), and 8.4(d), Formal Op. 508 describes examples of unethical conduct as it relates to witness testimony. Model Rule 3.4(b) bars attorneys from advising or assisting any witness to give false testimony. Fur ther, it is unethical to pay lay witnesses,

Trisha Rich is a commercial litigator and legal ethicist at Holland & Knight, CBA Secretary, and the Immedi ate Past President of the Association of Professional Responsibility Lawyers. You can reach her at trisha.rich@ hklaw.com or on LinkedIn at linkedin.com/in/trisharich.

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