ABA Section of Litigation Corporate Counsel CLE Seminar, February 17-19, 2011;
How to Ethically Prepare Corporate Witnesses for Deposition and Trial
How to Ethically Prepare Corporate
Witnesses for Deposition and Trial
Erin C. Asborno
Presenters:
Erin C. Asborno
Forman Perry Watkins Krutz & Tardy LLP
Denver
Tonya L. Lewis
Shell Oil Company
Houston
Marcia Narine
Ryder System, Inc.
Miami
Yvette Ostolaza
Weil, Gotshal & Manges LLP
Dallas
Susan G. Fillichio
DecisionQuest
Los Angeles
INTRODUCTION
James Fenimore Cooper originated the phrase "horse-shedding the witness," referring to attorneys who
lingered in carriage sheds near the old courthouse in White Plains, New York to rehearse their witnesses.1
The terms "horse-shedding" or "woodshedding" describe conduct that may come close to ethical
boundaries, while the term "witness preparation" is generally understood to be a professional obligation.2
The central question is how to determine the ethical line between "developing testimony so it will be
effective and suborning perjury by telling the witness what to say."3 In England, it is generally improper
for barristers to talk directly to clients or witnesses, thus alleviating the problem for the barrister and
placing the responsibility upon the solicitor.4 Here in the United States, we act as both barristers and
solicitors, therefore, we must balance our duty to clients with our ethical obligations to the court.5 This
delicate balance is plainly evident in the book (and film) Anatomy of a Murder,6 which is the story of
defense attorney Paul Biegler and his client, Army Lieutenant Frederic Manion, who is charged with
murdering Barney Quill, after Quill raped his wife. While initially meeting with his client, Biegler
discovers that "a few wrong answers to a few right questions would leave [Biegler] with a client … whose
cause was legally defenseless."7 Biegler decides to deliver "The Lecture":
The Lecture is an ancient device that lawyers use to coach their clients so that the client
won't quite know he has been coached and his lawyer can still preserve the face-saving
illusion that he hasn't done any coaching. For coaching clients, like robbing them, is not
only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an
artful device as old as the law itself, and one used constantly by some of the nicest and
most ethical lawyers in the land. "Who, me? I didn't tell him what to say," the lawyer can
later comfort himself. "I merely explained the law, see." It is a good practice to scowl and
shrug here and add virtuously: "That's my duty, isn't it?"8
Biegler proceeds to describe the various legal defenses to murder, discounting each in turn until he arrives
at the final defense of insanity:9
"We will now explore the absorbing subject of legal justification or excuse," I said. …
"Well, take self defense," I began. "That's the classic example of justifiable homicide.
1
James W. McElhaney, McElhaney’s Trial Notebook at 99 (4th Ed. 2005).
2
Id. at 100; see also MRPC 1.1 (Appendix A).
3
McElhaney’s Trial Notebook, supra note 1, at 108.
4
Id.
5
Id.
6
Robert Traver, Anatomy of a Murder (1958).
7
Id. at 32.
8
Id. at 35.
9
Id. at 36-46.
2
On the basis of what I've so far heard and read about your case I do not think we need
pause too long over that do you?" "Perhaps not," Lieutenant conceded. [the lawyer
describes other defenses] … "Go on then; what are some of the other legal justifications
or excuses?" "Then there's the tricky and dubious defense of intoxication. Personally
I've never seen it succeed. But since you were not drunk when you shot Quill we shall
mercifully not dwell on that. Or were you?" "I was cold sober. Please go on."
"Then finally there's the defense of insanity." I paused and spoke abruptly, airily: "Well,
that just about winds it up." I arose as though making ready to leave. "Tell me more."
"There is no more." I slowly paced up and down the room. "I mean about this insanity."
"Oh, insanity," I said, elaborately surprised. It was like luring a trained seal with a
herring. "Well, insanity, where proven, is a complete defense to murder. It does not
legally justify the killing, like self defense, say, but rather excuses it." The lecturer was
hitting his stride. He was also on the home stretch. [the lawyer goes on to explain that a
crime must be committed by someone capable of distinguishing between right from
wrong; and answers questions about how long it takes to get out of an institution]
[I]t had been obvious to me from reading the newspaper the night before that insanity
was the best, if not the only, legal defense the man had. … "Maybe," he said, "maybe I
was insane." Very casually: "Maybe you were insane when?" I said. … "You know what
I mean. When I shot Barney Quill." … "You mean - you don’t remember shooting him?"
I shook my head in wonderment. … "You don’t even remember threatening Barney’s
bartender when he followed you outside after the shooting - as the newspaper says you
did?. . ." I paused and held my breath. "You don't remember telling him, 'Do you want
some too Buster?'?" The smoldering dark eyes flickered ever so little. "No, not a
thing."10
Biegler leads Manion through some crucial questions about why he confessed to the murder, and when
satisfied that Manion has answered consistently with the insanity defense, decides that Manion has passed
with flying colors, and concludes The Lecture.11
And thus, "[d]efining the line between preparing witnesses by informing them of a legal theory and
improper coaching is a nuanced legal issue…"12
MODEL RULES OF PROFESSIONAL CONDUCT
The American Bar Association Model Rules of Professional Conduct (hereinafter "MRPC" or "Model
Rules") provide general ethical prohibitions. MRPC 1.2(d) provides that "[a] lawyer shall not counsel a
client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer
may discuss the legal consequences of any proposed course of conduct with a client and may counsel or
assist a client to make a good faith effort to determine the validity, scope, meaning or application of the
law."13 MRPC 3.3(a)(3) requires that a lawyer not knowingly "offer evidence that the lawyer knows to be
10
Id.
11
Id. at 46-49.
12
Nunn v. Noodles & Co., 2010 WL 4867591 *6 (D.Minn).
13
See Appendix, MRPC 1.2 (Scope Of Representation And Allocation Of Authority Between Client And Lawyer).
3
false."14 MRPC 3.4(b) states that a lawyer must not "counsel or assist a witness to testify falsely."15 It is
professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or
misrepresentation."16
A lawyer must balance the aforementioned professional responsibilities against the obligation to
competently represent his or her client. "Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation."17 "Competent handling of a
particular matter includes inquiry into and analysis of the factual and legal elements of the problem,
and . . . adequate preparation. The required attention and preparation are determined in part by what is at
stake; major litigation and complex transactions ordinarily require more extensive treatment than matters
of lesser complexity and consequence."18
While the Model Rules set forth general ethical prohibitions, their meaning in the context of witness
preparation is unclear. The Comment to MRPC 3.4 states that "[f]air competition in the adversary system
is secured by prohibitions against destruction or concealment of evidence, improperly coaching witnesses,
obstructive tactics in discovery procedure, and the like."19
Witness preparation is typically protected from discovery under the work-product doctrine or the
attorney-client privilege. Moreover, beyond the obvious precept that is improper to instruct a witness to
testify falsely, neither the Model Rules nor the Comments specify what is allowed or prohibited in
preparing a witness. Thus, the boundaries of proper witness preparation are largely "controlled by a
lawyer's own informed conscience."20
RESTATEMENT OF THE LAW GOVERNING LAWYERS
Section 116 of the Restatement (Third) of the Law Governing Lawyers ("Restatement") confirms that
there is "relatively sparse authority" on witness preparation.21 The Restatement provides some guidance
however:22
14
See Appendix, MRPC 3.3 (Candor Toward the Tribunal).
15
See Appendix, MRPC 3.4 (Fairness to Opposing Party and Counsel); RESTATEMENT (THIRD) OF THE LAW
GOVERNING LAWYERS § 120(1) (2000) (lawyer may not knowingly counsel or assist a witness to testify falsely).
16
See Appendix, MRPC 8.4(c) (Misconduct).
17
See Appendix, MRPC 1.1 (Competence).
18
See Appendix, MRPC 1.1 (Comment 5, Thoroughness and Preparation).
19
See Appendix, MRPC 3.4, Comment 1 (emphasis added).
20
Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1, 3 (1995-96).
21
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116, Reporter's Note to cmt. b (2000) (collecting
cases).
22
See id.
4
In preparing a witness to testify, a lawyer may invite the witness to provide truthful testimony
favorable to the lawyer's client. Preparation consistent with the rule of this Section may include
the following:
(1) discussing the role of the witness and effective courtroom demeanor;
(2) discussing the witness's recollection and probable testimony;
(3) revealing to the witness other testimony or evidence that will be presented and asking the
witness to reconsider the witness's recollection or recounting of events in that light;
(4) discussing the applicability of law to the events in issue;
(5) reviewing the factual context into which the witness's observations or opinions will fit;
(6) reviewing documents or other physical evidence that may be introduced; and
(7) discussing probable lines of cross-examination that the witness should be prepared to meet.
Witness preparation may include rehearsal of testimony. A lawyer may suggest [a] choice of
words that might be employed to make the witness's meaning clear. However, a lawyer may not
assist the witness to testify falsely as to a material fact.23
WITNESS PREPARATION GENERALLY
A lawyer has a duty to prepare a witness to testify. This preparation may include discussion concerning
the application of law to the events in issue.24 But "[a]n attorney must respect the important ethical
distinction between discussing testimony and seeking improperly to influence it."25 Thus, the prohibition
on counseling or assisting a witness to testify falsely also applies to the influence that an attorney may
have upon the substance of a witness's testimony in the preparation process.26
A lawyer may inform the witness of questions to be asked on direct examination, advise the witness of
potential questions to be asked on cross-examination, describe the deposition and trial process, and
caution about loquaciousness or excessively long narratives.27 A lawyer may tell the witness if her
responses during a preparation session are misleading, confusing, unclear, or likely to be misinterpreted
or misconstrued; may advise a witness to use powerful language and to avoid jargon; and may suggest
other means to help the witness convey her meaning.28
23
See id.
24
Id.
25
Geders v. United States, 425 U.S. 80, 90 n.3 (1976); Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa.
1993).
26
"An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line
when she influences the witness to alter testimony in a false or misleading way." Ibarra v. Baker, 338 F. App’x 457,
465 (5th Cir. 2009) (citing John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277 (1989)).
27
28
Steven Lubet, Expert Witnesses: Ethics and Professionalism, 12 Geo. J. Legal Ethics 465, 471 (1999).
Id.
5
Preparing a witness to give a rehearsed answer is improper if the purpose for doing so is to mislead the
finder of fact or frustrate the inquiring party from obtaining legitimate discovery. A prime example is the
document known as the "Script Memo," which was inadvertently disclosed by a novice lawyer to defense
counsel, has been the topic of extensive discussion and debate on the issue of witness coaching. 29 The
twenty-page "Script Memo," entitled "Preparing for Your Deposition," instructs all clients (without regard
to truth):
You will be asked if you ever saw any WARNING labels on containers of asbestos. It is
important to maintain that you NEVER saw any labels on asbestos products that said
WARNING or DANGER. . . . Do NOT mention product names that are not listed on
your Work History Sheets. The defense attorneys will jump at a chance to blame your
asbestos exposure on companies that were not sued in your case. Do NOT say you saw
more of one brand than another, or that one brand was more commonly used than
another. . . . Keep in mind that these [defense] attorneys are very young and WERE NOT
PRESENT at the jobsites you worked at. They have NO RECORDS to tell them what
products were used on a particular job, even if they act like they do. . . . The only
documents you should ever refer to in your deposition are your Social Security Print Out,
your Work History Sheets and photographs of products you were shown, but ONLY IF
YOU ARE ASKED ABOUT THEM AND ONLY IF YOUR BARON & BUDD
ATTORNEY INSTRUCTS YOU TO ANSWER! Any other notes, such as what you are
reading right now, are "privileged" and should never be mentioned.30
While a lawyer may suggest particular words to a witness, the lawyer may not suggest wording that
would cause the resulting testimony to be false.31 A lawyer may suggest a choice of words to improve the
29
See, e.g., Abner v. Elliot, 706 N.E.2d 765, 767 (Ohio 1999); S. REP. No. 108-118 (July 21, 1993), Fairness in
Asbestos Injury Resolution Act, at 85-95 (Script Memo reprinted at 109-131); see also Witness Preparation Memos
Raise Questions About Ethical Limits, 14 Law. Man. Prof. Conduct 48 (1998) (discussing numerous examples
including: In re Eldridge, 82 N.Y 161 (1880) (a lawyer's duty is to "extract the facts from the witness, not to pour
them into him; to learn what the witness does know, not to teach him what he ought to know."); EEOC v. Mitsubishi
Motor Mfg. of Am.. Inc., No. 96-1192 (C.D. Ill. Oct. 23, 1997) ("the 'memory joggers' that Mitsubishi finds so
objectionable are probably, in most cases, no more suggestive than Mitsubishi's own communications with its
people before a deposition."); Joseph D. Piorkowski, Jr., Note, Professional Conduct and the Preparation of
Witnesses for Trial: Defining the Acceptable Limitations of Coaching, 1 Geo. J. Legal Ethics 397, 401 (1987)
(commentator surveying the law concerning the practice of suggesting particular words, indicating that lawyers are
prohibited only from attempting to influence the intended meaning of a witness's testimony on a material issue)).
30
Id.
31
See generally Piorkowski, supra note 31, at 401-04; RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS
§ 116, Reporter's Note to cmt. b (2000).
6
clarity and accuracy of the witness’s testimony32 but may not suggest particular words, even though not
literally false, which are calculated to convey a misleading impression.33
A lawyer’s word choice when interviewing a witness (for example, the question: "Did you see a warning
label?" as opposed to the more influential: "Did you see the warning label?") can also improperly
influence witness testimony. 34 If a lawyer’s preparation were designed to fabricate a recollection that
does not actually exist, rather than to facilitate an actual recollection, the lawyer would likely cross the
ethical boundary from permissible preparation into improper coaching; however, it may be appropriate for
a lawyer to challenge a witness’ apparent recollection if it is inconsistent with other evidence or is
illogical or incoherent.35 Whatever the mode of preparation, it is important that the lawyer avoid
suppressing, distorting, or falsifying the testimony given by the witness.36 A lawyer must also be guided
by ethical principles when reviewing the facts with a witness and refreshing the witness’s recollection so
as to avoid false testimony.37
PREPARING CORPORATE WITNESSES FOR DEPOSITION
When preparing corporate witnesses, most of the general guidelines for witness preparation apply.
Additional considerations include the type of deposition, the scope of representation, corporate witnesses
with inconsistent memories of an event, and the company’s litigation position.
When testimony pursuant to FED. R. CIV. P. 30(b)(6) is given, a lawyer’s preparation of the designated
witness may require the lawyer to investigate and supply facts to the witness in order for the witness to
testify concerning those facts.38 Counsel should be aware of the rules in their jurisdiction concerning the
scope of questioning. In a recent decision, a magistrate judge held that the questioning of a Rule 30(b)(6)
deponent is not limited to those subjects identified in the Rule 30(b)(6) notice.39 The scope of preparation
for a 30(b)(6) deposition requires attention to detail as the scope of inquiry may be very broad.
See D.C. Legal Ethics Op. 79 (1979) (a lawyer’s suggestion of a choice of words that might be employed to make
the witness's meaning clear is permissible if the substance of the ultimate testimony, as far as the lawyer knows or
ought to know, remains truthful and is not misleading); see also RESTATEMENT (THIRD) OF THE LAW GOVERNING
LAWYERS § 116, cmt. b (2000).
32
33
See D.C. Legal Ethics Op. 79 (1979); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116, cmt. b
(2000).
34
Nicole LeGrande and Kathleen E. Mierau, Witness Preparation and the Trial Preparation Industry, 17 Geo. J.
Legal Ethics 947, 954 (Summer 2004).
35
Id. at 955.
36
District of Columbia Ethics Op. 79, at 140 (1979).
37
Id. at 130-40 (internal citation omitted).
38
See, e.g., Black Horse Lane Assocs., L.P. v. Dow Chem Corp., 228 F.3d 275, 304 (3d Cir. 2000) ("[W]hen a
witness is designated by a corporate party to speak on its behalf pursuant to Rule 30(b)(6), "producing an
unprepared witness is tantamount to a failure to appear" that is sanctionable . . . .").
39
Am. Gen. Life Ins. Co v. Billard, 2010 U.S. Dist LEXIS 114961 (N.D. Iowa Oct. 28, 2010).
7
With regard to the scope of representation, "[a] lawyer employed or retained by an organization
represents the organization acting through its duly authorized constituents."40 Therefore, when a lawyer
speaks to corporate witnesses, she is not speaking to her clients, but rather, to agents of her organizational
client.41 The term "corporate witness" generally includes directors, officers, employees, members,
shareholders or other constituents whose testimony will be sought in cases in which their corporate
employer is a party.42 Conflict of interest problems can arise when corporate witnesses testifying on
behalf of the organizational client disagree. In the event of the conflict of interest between the
organization and the individual, the lawyer owes a duty to the organization.43 A lawyer who prepares an
unrepresented employee of an organizational client for deposition has a duty to advise the employee as to
whom the lawyer does and does not represent, the lawyer’s obligation to the organizational client, and
that the lawyer will not provide legal advice to the individual, other than advice to obtain separate
counsel.44
Commentators Stephen M. Goldman and Douglas A. Winegardner, in an article on ethical preparation of
deposition witnesses, discuss two common issues in corporate witness preparation: (1) reconciling the
testimony of corporate witnesses concerning the historical record; and (2) lawyer involvement in the
creation of corporate understandings.45 Where corporate employees have inconsistent memories of an
historical event, a lawyer may refresh a witness’s recollection of the facts and familiarize the witness with
relevant documents to assure that the witness’s memory is accurate, but a lawyer must not influence a
witness to testify falsely or intimate that it would be in the company’s best interest to adopt a particular
position.46 While the company has hired the lawyer to construct and advance its litigation position, if a
corporate witness honestly believes that he is correct and his testimony is contrary to the company’s
position, a lawyer must construct the company’s position around the damaging contradictory testimony.47
A similar situation arises when a case presents the historical question of a company’s understanding of a
contract term at the time the contract was signed, for example.48 A non-natural person such as a
corporation cannot literally have an understanding.49 For purposes of a Fed. R. Civ. P. 30(b)(6)
40
See Appendix, MRPC 1.13(a) (Organization As Client).
41
Stephen M. Goldman & Douglas A. Winegardner, The Anti-False Testimony Principle and the Fundamentals of
Ethical Preparation of Deposition Witnesses, Catholic University Law Review 59: 1, 55 (2009).
42
Id.; Appendix, MRPC 1.13 (Organization As Client).
43
See Appendix, MRPC 1.13 (Organization As Client).
Lawrence J. Fox, Defending a Deposition of Your Organizational Client’s Employee: An Ethical Minefield
Everyone Ignores, 44 S. Tex. L. Rev. 185, 189 (2002-2003); RESTATEMENT (THIRD) OF THE LAW GOVERNING
LAWYERS § 103, cmt. e (2000) (“An adequate clarification may in some instances be required to protect the interest
of the organization client in unencumbered representation, Failing to clarify the lawyer’s role and the client’s
interests my redound to the disadvantage of the organization if the lawyer, even if unwittingly, thereby undertakes
concurrent representation of both the organization and the constituent.”)
44
45
Goldman & Winegardner, supra note 41, at 56.
46
Id.
47
Id.
48
Id.
49
Id.
8
deposition, the understanding of the corporations’ designated officer, director, or managing agent is
attributed to the corporation.50
When part of a case involves the client’s current understanding of a legal provision, safety action,
explanation of past conduct, or other similar issue, a lawyer may work with the client to formulate the
position the company will take in litigation.51 This strategy is contingent on the standard that, when
testifying in deposition or at trial as to this understanding, corporate representatives believe that the
testimony is true.52 The difference between an individual client case and a corporate case is the
possibility in the latter that "the differing views from the organization’s agents must be reconciled to
create a coherent litigation position."53 A corporation frequently will wait to articulate its litigation
position until after it has retained counsel.54 A coherent litigation position can only be created "to the
extent that the accounts of various corporate officials whose opinions matter can be rendered in a coherent
and consistent form."55 The crucial difference between the historical record and present understandings,
according to Goldman and Winegardner, is the lawyer preparing the part of the case involving
explanations or justifications need not begin with what her clients tell her, as is required with the
historical record.56 Particularly in complex commercial litigation, corporations retain lawyers "to create a
legally sound and factually plausible case."57 The difficulty is that opposing counsel will attempt to use
the depositions of company employees to expose inconsistent individual understandings and explanations,
thereby creating an inconsistency in the organization’s position.58 When preparing corporate witnesses to
testify lawyers may properly work with their corporate client to formulate the corporation’s litigation
position, for example, a corporations’ present understanding of why it is entitled to damages in a contract
dispute.59
PREPARING WITNESSES FOR TRIAL
"The pretrial preparation of witnesses will in large measure determine the extent to which the triers of fact
are persuaded of the reality of the client’s drama and are transported into the circumstances that led to the
conflict at the heart of the trial."60 One treatise lists the following primary objectives for this preparation:
50
Id.
51
Id. at 57.
52
Id.
53
Id. at 58.
54
Id.
55
Id.
56
Id.
57
Id.
58
Id. at 58-59.
59
Id. at 59.
60
R. Aron & J. Rosner, How to Prepare Witnesses for Trial 4 (1985).
9
(1) help the witness tell the truth;
(2) make sure the witness includes all the relevant facts;
(3) eliminate the irrelevant facts;
(4) organize the facts in a credible and understandable sequence;
(5) permit the attorney to compare the witness’ story with the client’s story;
(6) introduce the witness to the legal process;
(7) instill the witness with self-confidence;
(8) establish a good working relationship with the witness;
(9) refresh, but not direct the witness’ memory;
(10) eliminate opinion and conjecture from the testimony;
(11) focus the witness’ attention on the important areas of testimony;
(12) make the witness understand the importance of his or her testimony;
(13) teach the witness to fight anxiety, and particularly to defend him or herself during
cross-examination.61
Lawyers should be aware that the retention of a trial consultant to prepare witnesses does not absolve a
lawyer from his or her ethical responsibilities. Model Rules 5.3 and 8.4 expressly state that lawyers are
responsible for the acts of others under their control, including non-lawyers.62 MRPC 5.3 details those
responsibilities as follows: "[A] lawyer shall be responsible for conduct of [a nonlawyer employed or
retained by or associated with a lawyer] that would be a violation of the Rules of Professional Conduct if
engaged in by a lawyer if: . . . the lawyer orders or, with the knowledge of the specific conduct, ratifies
the conduct involved."63
The decision in Ibarra v. Baker64 provides a good example of how Rule 5.3 can be violated in the expert
witness context. Through their interaction with a retained expert, attorneys in a civil case filed against
police officers, after the plaintiffs were acquitted of criminal charges, improperly influenced fact
witnesses’ testimony concerning the terms of art "retaliation" and "high crime area." With the attorneys’
approval, the expert provided a witness with a highlighted, marked-up copy of the trial transcript in the
underlying criminal matter. One witness arrived at his deposition with a page of notes that closely
tracked the expert report, including reference to a "high crime area." The witnesses began using these
61
Id. at 82-83.
62
See Appendix, MRPC 5.3; MRPC 8.4.
63
See Appendix, MRPC 5.3(c)(1).
64
Ibarra v. Baker, 338 F. App’x 457 (5th Cir. 2009).
10
terms as part of their deposition testimony. The court upheld sanctions against the attorneys for
improperly influencing a witness to testify in conformity with a novel theory, previously unsupported by
fact, but which was advanced in the expert's preliminary report.
A lawyer may be held responsible if a retained trial consultant violates Model Rule 3.4(b). A lawyer may
also be held responsible for the methods employed by a trial consultant in the course of preparing a
lawyer’s witness for deposition or trial.65
65
Nicole LeGrande and Kathleen E. Mierau, Witness Preparation and the Trial Preparation Industry, 17 Geo. J.
Legal Ethics 947, 951 (Summer 2004).
11
CONCLUSION
Ethical witness preparation is an essential part of preparing for deposition or trial. The crucial issue is
that the lawyer does not falsify, distort, improperly influence, or suppress the substance of the testimony
to be given by the witness. When preparing corporate witnesses for deposition and trial, it is important to
focus on additional considerations for ethical preparation such as the type of deposition, the scope of the
lawyer’s representation, how to address corporate witnesses with inconsistent memories of an historical
event, and present corporate understandings. By keeping in mind the ethical considerations when
preparing witnesses, a lawyer intelligently ensures that his or her client’s case will be properly presented.
12
APPENDIX
MODEL RULE OF PROFESSIONAL CONDUCT 1.1 (COMPETENCE)
MODEL RULE OF PROFESSIONAL CONDUCT 1.1, COMMENT 5
MODEL RULE OF PROFESSIONAL CONDUCT 1.2 (SCOPE OF REPRESENTATION AND ALLOCATION OF
AUTHORITY BETWEEN CLIENT AND LAWYER)
MODEL RULE OF PROFESSIONAL CONDUCT 1.13 (ORGANIZATION AS CLIENT)
MODEL RULE OF PROFESSIONAL CONDUCT 3.3 (CANDOR TOWARD THE TRIBUNAL)
MODEL RULE OF PROFESSIONAL CONDUCT 3.4 (FAIRNESS TO OPPOSING PARTY AND COUNSEL)
MODEL RULE OF PROFESSIONAL CONDUCT 3.4, COMMENT 1
MODEL RULE OF PROFESSIONAL CONDUCT 5.3 (RESPONSIBILITIES REGARDING NON-LAWYER
ASSISTANTS)
MODEL RULE OF PROFESSIONAL CONDUCT 8.4 (MISCONDUCT)
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116 (2000)
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116, cmt. b (2000)
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 120 (2000)
13
APPENDIX
Model Rule of Professional Conduct 1.1 (Competence)
A lawyer shall provide competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
14
Model Rule of Professional Conduct 1.1, Comment 5
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal
elements of the problem, and use of methods and procedures meeting the standards of competent
practitioners. It also includes adequate preparation. The required attention and preparation are determined
in part by what is at stake; major litigation and complex transactions ordinarily require more extensive
treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the
client regarding the scope of the representation may limit the matters for which the lawyer is responsible.
See Rule 1.2(c).
15
Model Rule of Professional Conduct 1.2
(Scope Of Representation And Allocation Of Authority Between Client And Lawyer)
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives
of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they
are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to
carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a
criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a
plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an
endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows
is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course
of conduct with a client and may counsel or assist a client to make a good faith effort to determine
the validity, scope, meaning or application of the law.
16
Model Rule of Professional Conduct 1.13 (Organization As Client)
(a) A lawyer employed or retained by an organization represents the organization acting through
its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the
organization is engaged in action, intends to act or refuses to act in a matter related to the representation
that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be
imputed to the organization, and that is likely to result in substantial injury to the organization, then the
lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer
reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer
shall refer the matter to higher authority in the organization, including, if warranted by the circumstances
to the highest authority that can act on behalf of the organization as determined by applicable law.
(c) Except as provided in paragraph (d), if
(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act
on behalf of the organization insists upon or fails to address in a timely and appropriate manner
an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial
injury to the organization,
then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits
such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent
substantial injury to the organization.
(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an
organization to investigate an alleged violation of law, or to defend the organization or an officer,
employee or other constituent associated with the organization against a claim arising out of an alleged
violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions
taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the
lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes
necessary to assure that the organization's highest authority is informed of the lawyer's discharge or
withdrawal.
(f) In dealing with an organization's directors, officers, employees, members, shareholders or other
constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should
know that the organization's interests are adverse to those of the constituents with whom the lawyer is
dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers, employees,
members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's
consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate
official of the organization other than the individual who is to be represented, or by the shareholders.
17
18
Model Rule of Professional Conduct 3.3 (Candor Toward The Tribunal)
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to know of its
falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to
the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a
criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends
to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall
take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply
even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer
that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
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Model Rule of Professional Conduct 3.4
(Fairness to Opposing Party and Counsel)
A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a
document or other material having potential evidentiary value. A lawyer shall not counsel or assist
another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that
is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an
assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to
comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be
supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a
witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the
culpability of a civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another
party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining
from giving such information.
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Model Rule of Professional Conduct 3.4, Comment 1
The procedure of the adversary system contemplates that the evidence in a case is to be marshalled
competitively by the contending parties. Fair competition in the adversary system is secured by
prohibitions against destruction or concealment of evidence, improperly influencing witnesses,
obstructive tactics in discovery procedure, and the like.
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Model Rule of Professional Conduct 5.3
(Responsibilities Regarding Nonlawyer Assistants)
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that the person's conduct is compatible with the professional
obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to
ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the
person is employed, or has direct supervisory authority over the person, and knows of the conduct
at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial
action.
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Model Rule of Professional Conduct 8.4 (Misconduct)
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to
do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a
lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results
by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law.
23
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116 (2000)
1) A lawyer may interview a witness for the purpose of preparing the witness to testify.
2) A lawyer may not unlawfully obstruct another party's access to a witness.
3) A lawyer may not unlawfully induce or assist a prospective witness to evade or ignore process
obliging the witness to appear to testify.
4) A lawyer may not request a person to refrain from voluntarily giving relevant testimony or
information to another party, unless:
a) The person is the lawyer's client in the matter; or
b) (i) the person is not the lawyer's client but is a relative or employee or other agent of the
lawyer or the lawyer's client, and (ii) the lawyer reasonably believes compliance will not
materially and adversely affect the person's interests.
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RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS
§ 116, cmt. b (2000)
In preparing a witness to testify, a lawyer may invite the witness to provide truthful testimony
favorable to the lawyer's client. Preparation consistent with the rule of this Section may include
the following: discussing the role of the witness and effective courtroom demeanor; discussing the
witness's recollection and probable testimony; revealing to the witness other testimony or evidence
that will be presented and asking the witness to reconsider the witness's recollection or recounting
of events in that light; discussing the applicability of law to the events in issue; reviewing the
factual context into which the witness's observations or opinions will fit; reviewing documents or
other physical evidence that may be introduced; and discussing probable lines of crossexamination that the witness should be prepared to meet. Witness preparation may include
rehearsal of testimony. A lawyer may suggest [a] choice of words that might be employed to
make the witness's meaning clear. However, a lawyer may not assist the witness to testify falsely
as to a material fact.
25
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS
§ 120 (2000)
False Testimony or Evidence
(1) A lawyer may not:
(a) knowingly counsel or assist a witness to testify falsely or otherwise to offer false evidence;
(b) knowingly make a false statement of fact to the tribunal;
(c) offer testimony or other evidence as to an issue of fact known by the lawyer to be false.
(2) If a lawyer has offered testimony or other evidence as to a material issue of fact and comes to know of
its falsity, the lawyer must take reasonable remedial measures and may disclose confidential client
information when necessary to take such a measure.
3) A lawyer may refuse to offer testimony or other evidence that the lawyer reasonably believes is false,
even if the lawyer does not know it to be false.
26