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_responsibility/publications/ethics_opinions/?login.
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