August 2013 Bar Bulletin
"Ain't Misbehavin'" Ethical Boundaries of Witness Preparation
By Christopher Howard and Georgina Santos
The boundary between appropriate (and ethical) witness preparation and questionable "wood shedding" is not well defined in any rule. It is supposed to be obvious to an ethical practitioner. It may not always seem obvious in practice.
There are surprising few ethics opinions on the proper scope of a lawyer's role in preparing a witness. Commentators have expressed that witness preparation is necessary to ethically represent a client and also allows an attorney to fulfill RPC 4.1 duties. Preparing clients and fact witnesses for deposition is part of the diligent representation of a client. A lawyer can (and should) ensure that witness statements to the tribunal are truthful. In between those two boundaries, there are some useful guidelines for preparing witnesses.
Investigation before Meeting
Witness preparation begins before meeting with the witness (or client). In the Internet age, it is easy to obtain background information through routine use of search engines and social media. There are some constraints on what a lawyer can do in this area; the limitations are mostly from RPC 4.1 (truthfulness in statements to others), RPC 4.2 (communicating with persons represented by counsel) and RPC 4.3 (dealing with unrepresented person).
Use of the Internet and social media to research witnesses is becoming the norm. You may not, however, initiate friending or seek confidential information that is not available to the general public if you could not speak to the witness personally. For example, you cannot seek to "friend" a plaintiff or employee who is a speaking agent of a corporation that is represented by counsel. And you cannot do anything that is misleading or misrepresents your role as a lawyer when contacting unrepresented witnesses in this fashion.
Taking social media into account is important defensively, also. A wise precaution to take with your own clients and witnesses at the outset of a case is to caution your clients about what they post and make available through the Internet.
This also applies to corporations. Your corporate clients may not realize that archive services keep track of everything they ever posted. Even if a website has been taken down, opposing counsel can get copies of what was once posted by your client. All of this is fair play in preparation for depositions and discovery.
So, what can you do to help a witness prepare? A face-to-face meeting is usually a good idea, but what can you tell the witness? What documents can you use? And when will the meeting be protected in any way?
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