ABA issues ethics guidance outlining model rule guardrails when lawyers prepare witnesses
The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion Wednesday providing a roadmap to help lawyers stay within the parameters of ABA Model Rules of Professional Conduct when they prepare a witness or client to testify before a deposition or adjudicative proceeding.
Formal Opinion 508 explains the difference between legitimate witness preparation or guidance and unethical efforts to influence witness testimony, sometimes called “coaching.” But at the same time, it acknowledges the distinction can be ambiguous, owing in large part to the concurrent ethical duties to diligently and competently represent a client and to refrain from improperly influencing witnesses.
“In some witness-preparation situations, a lawyer clearly steps over the line of what is ethically permissible,” the opinion said, listing several model rules that cover such situations. “Certain categories of lawyer activity are firmly established as unethically interfering with the integrity of the justice system and unethically obstructing another party’s access to evidence.”
The opinion listed several examples of improper attorney behavior, from winking or kicking a deponent under the table during a deposition to suggesting a witness lie under oath.
Formal Opinion 508 marks the first guidance in this area since the emergence of the COVID-19 pandemic in early 2020, and the subsequent growth of remote proceedings for discovery and other matters. It notes that trend, adding “the use of remote communications platforms and other technologies … provides opportunities and temptations for lawyers to surreptitiously tell or signal witnesses what to say or not say in the proceedings of a tribunal.”
“The task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously ‘coach’ witnesses in new and ethically problematic ways,” it said.
The opinion, which was approved by the ABA Standing Committee on Ethics and Professional Responsibility last month, urges lawyers to consider available “prophylactic measures designed for use in remote proceedings to prevent and detect incidences of unethical coaching conduct.”
The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.
Formal Opinion 508 and other recent ABA ethics opinions are available at www.americanbar.org/groups/professional_respons ibility/publications/ethics_opini ons/?login.
Section plans 2023 Virtual ADR Annual Conference and Annual Meeting
The Alternative Dispute Resolution Section will conduct its 2023 Virtual ADR Annual Conference and Annual Meeting Friday and Saturday, September 29-30.
The online program offers advanced skills building, updates to alternative dispute resolution law, and addresses significant issues that touch on diversity and neutrality for providers. The Conference has been approved by SCAO for up to 11 hours of advanced mediation training credits. Topics to be covered include:
• The What, Why, and How of Transformative Mediation—with Tara West
• Collaborative Law and Co-Resolution Unveiled: Unique Team Approaches to Problem Solving—with Nathan Witkin, Jessica P. Heltsley, and Mathew Kobliska
• Trauma Informed Conflict Resolution – Everything, Everywhere, All at Once—with Treena Reilkoff
• Evolving Technologies in ADR-Best Practices and Party Empowerment—with Harshitha Ram, Clare Fowler, and Colin Rule
• Michigan ADR Case Law Update—with Lee Hornberger
• Discrimination in Dispute Resolution—with Lisa W. Timmons and Dan Berstein
• Mediated vs. Judicial Decisions in the Business Court—with Wayne County Circuit Court Judge Christopher P. Yates, Bradley Glazier, and Elizabeth Wells Skaggs
• Mediation Fundamentals 2.0-Deep Listening and Open-Ended Questions—with Anne Bachle Fifer and Robert Wright
• Challenges Facing Arbitrators and Protecting the Award—with M. Catherine Farrell, Shawntane Williams, and Janice Holdinski
• Working with In-House Legal Departments in Mediation—with Jason C. Miller, Michael Steinberger, Luis Gomez, and Christopher Spain
• Evidence in Arbitration—with Larry J. Saylor, Martin C. Weisman, Betty R. Widgeon, and Janice Holdinski
• The Use of Special Masters and Mediation to Resolve Discovery Disputes—with Meghan P. McKnight and B. Jay Yelton III
• Turning No into Not Yet: Neutrals Discuss Their Path to Practice— with Lisa W. Timmons, Michael LaConto, Alex Green, and Betty R. Widgeon
• Hang onto Your Hats: Reframing the Multiple Roles Played by Mediators—with Sheldon J. Stark
• Case Evaluation 2023, Lessons Learned One Year after the Court Rule Change—with Lisa W. Timmons, Wayne County Circuit Court Chief Judge Patricia Perez Fresard, Timothy P. Brady, and Robert M. Raitt
• Judicial Interventions in Mediation: The Good, The Bad, and The Ugly—with Dale Ann Iverson, Edward H. Pappas, Antoinette Raheem, and retired Judge Denise Langford Morris
Also speaking at the conference will be Michigan Supreme Court Chief Justice Elizabeth T. Clement, ?State Bar of Michigan President Daniel D. Quick, 2022-2023 ADR Section Chair Edward H. Pappas, and 2023-2024 ADR Section Chair Jennifer Grieco.
To register for the conference, visit www.sbmadrconference.com.
