In August, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 508 on the Ethics of Witness Preparation. The Standing Committee suggests that a certain degree of witness preparation should be a standard in most areas of practice; however, there are ethical lines, some clearer than others, on how far witness preparation can go.  

Clear ethical standards require us to counsel our clients that they must: 

1. 1. tell the truth when testifying under oath and in sworn written statements (RPC 3.3); 
   2. obey court orders including case management orders and lawfully issued subpoenas (RPC 3.4); and 
   3. produce information requested pursuant to lawful discovery processes and protect documents and items that must be preserved or maintained (RPC 3.4). 

It is also a clear ethical requirement that lawyers must not interfere with a witness’ testimony once examination begins, including and especially if that examination is through use of remote technology like Zoom or another video conferencing platform. Formal Opinion 508 gives specific guidance on establishing parameters to address and prevent witness-coaching behavior that may occur more readily via remote technology than in-person.  

While the urge may arise to kick your client-deponent under the table during their testimony, Opinion 508 reminds us that this is a “classic example of [an] effort to improperly influence a witness’s in-progress testimony.” This is true whether the deposition is taking place in person or remotely. But more covert witness influencing may occur with use of technology in a remote setting. Electronic messaging or other off-screen activities would constitute unethical witness influencing. To avoid such misconduct, Opinion 508 recommends some proactive measures: 

• Understand how the relevant technology works. Video conferencing technology has been in widespread use for several years; lawyers should have an awareness of various platforms’ options and how to enable or disable certain options.  
• Be thoughtful about opportunities for “surreptitious coaching and consider how to structure the remote proceedings in ways that will deter its occurrence.”  
• Incorporate questions about witness preparation into your line of questioning. 
• Seek inclusion of protocols about remote testimony in administrative orders such as scheduling or case management orders. 

Formal Opinion 508 further offers guidance on permissible preparatory conduct. Generally considered necessarily diligent, attorneys should discuss with witnesses the role of the witness, the importance of taking an oath to testify honestly, the roles of the other lawyers, judges, and courtroom staff, and effective and proper decorum and attire. An attorney should inquire into the witness’ recollection and probable testimony, and may consider discussing strategy, context, and other witnesses’ statements. While a lawyer can suggest language and words to help communicate clearly, ethical opinions suggest that scripting the testimony would be improper. 

For further reading, see this compilation of resources from the Inns of Court on the Ethics of Witness Preparation and more specifically on the ethics of witness preparation by prosecutors in this article by Northeastern University School of Law Professor Daniel Medwed published in the Ohio State Journal of Criminal Law. Additionally, Opinion 508 is issued under the ABA Model Rules. See also Ohio Rules of Professional Conduct for Comparison to ABA Model Rules of Professional Conduct.

Obligations to clients, tribunals, and others may sometimes be at odds. With thoughtful preparation and agreed-upon parameters, the risk and impact of improper coaching can be mitigated. As always, if you have any questions about this topic or others, do not hesitate to contact the loss prevention hotline to speak with experienced attorneys. 

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.