ABA panel spotlights critical value of witness prep

By Pat Murphy

A new ethics opinion from the American Bar Association reminds litigators of the critical role of witness preparation in winning cases while setting markers for defining impermissible “coaching” in an age when remote proceedings have increased the opportunity for chicanery.

The American Bar Association Standing Committee on Ethics & Professional Responsibility released a formal opinion on Sept. 6 providing what the panel calls a “roadmap” for staying in compliance with rules of professional conduct when preparing clients and witnesses for testimony at a deposition or court proceeding.

Formal Opinion 508, “The Ethics of Witness Preparation,” recognizes that providing testimonial guidance is not only an accepted function of the lawyer but constitutes “an essential tactical component of a lawyer’s advocacy” — so much so that a failure to adequately prepare a witness “would in many situations be classified as an ethical violation.”

The committee does recognize that witness preparation is something of a tightrope act for the lawyer, since counseling a witness who subsequently gives false or misleading testimony may trigger suspicions that the attorney engaged in professional misconduct by coaching.

Meanwhile, the committee warns that 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.”

Boston litigator Daniel I. Small literally wrote the book on the subject of the ethics opinion. Published by the ABA, Small’s book “Preparing Witnesses” is in its fifth edition, and Small is frequently called on by lawyers across the country for help in preparing high-profile and high-risk witnesses for testimony.

“The preparation of witnesses has always been one of those things that a lot of lawyers — even very good lawyers — believe they know how to do when they really don’t, or don’t know how to do it well,” Small says. “We really don’t understand just what a challenge we have as lawyers to help regular people succeed in this very bizarre and unnatural environment.”

Boston litigator Ian J. Pinta doesn’t see the ABA ethics opinion as necessarily breaking new ground.

“What the ABA is saying here is [that] what practitioners have been doing for years pre-COVID [at depositions and hearings], they should do post-COVID at remote depositions and hearings,” Pinta says. “Lawyers should act with common sense.”

The ‘Three Bills’

Small says all too often litigators overlook the importance of witness preparation, noting that someone who is extremely smart and well-spoken can turn out to be a terrible witness at a deposition or in court.

“When I teach this issue [at seminars], I talk about the ‘Three Bills’ — Bill Gates, Bill Clinton and Bill Cosby,” Small says. “All of them are incredibly intelligent and articulate people, but you can go on the internet and find videos of their terrible, terrible jobs being witnesses.”

The ABA’s ethics opinion makes clear that effective witness preparation is part and parcel of the lawyer’s duty to serve the client with competence, which under ABA Model Rule 1.1 includes performing with the “thoroughness and preparation reasonably necessary for the representation.”

The opinion explains that “acceptable” forms of witness preparation in advance of a deposition or court proceeding include inquiring into the witness’s probable testimony and recollection, exploring the witness’s version of events in light of other anticipated testimony, and identifying lines of potential cross-examination.

Also acceptable are the familiar admonitions to tell the truth, to avoid being argumentative, to testify in terms of what one knows without speculating, and that it’s OK for a witness to answer that he has no recollection of a particular event.

In terms of what constitutes unethical pre-testimony coaching, the ABA committee identified as its guidepost Model Rule 3.4(b), which prohibits a lawyer from advising or assisting a witness to give false testimony.

“Instigating a witness to lie can occur in ways beyond an outright instruction to fabricate testimony,” the ethics opinion states. For example, the authors write that it is unethical for a lawyer to tell a witness to “downplay” the number of times the witness and lawyer met to prepare for testimony, or to encourage a client to misrepresent the location of a slip-and-fall to preserve a claim for damages.

“There are some areas that it’s a fine line between aggressively preparing a witness and over-preparing,” Small says. “You need to be aware of that line. It’s something we always need to be thinking of.”

Steering testimony-in-progress

The ethics opinion states that “overtly attempting to manipulate” testimony-in-progress would, in most situations, qualify as “conduct prejudicial to the administration of justice” in violation of Model Rule 8.4(d).

“Winking at a witness during trial testimony, kicking a deponent under the table, or passing notes or whispering to a witness mid-testimony are classic examples of efforts to improperly influence a witness’s in-progress testimony,” the opinion states.

But the opinion notes that there are more subtle types of signaling that could transgress the ethics rules and invite court-ordered sanctions.

“A familiar type of covert coaching is the so-called ‘speaking objection,’ or ‘suggestive objection,’” the authors write. “These are ‘statements that go beyond just stating the objection or the basis for the objection and are intended — or at least suspected of being intended — to coach the witness and impede the deposing attorney’s discovery.’”

Policing remote proceedings

While remote depositions were a “necessary evil” at the height of the COVID pandemic, Small says, he believes they now are grossly overused.

“I don’t think it is nearly as effective,” he says.

But like it or not, remote proceedings are here to stay, Pinta notes.

When a witness has to provide testimony remotely, Small says it is incumbent on the attorney to set ground rules requiring the identification of those in the room with the witness as well as any documents that may be at hand.

“In some instances, you can insist that [those other people] be on camera as well,” he says.

So far, Pinta says he hasn’t experienced any “foul play” in the course of examining witnesses remotely, though he says he does take standard precautions.

“One of the first questions I always ask when I am taking a remote deposition is, ‘Where are you sitting today as you answer these questions? Is anybody else in the room?’”

If he ever suspected a witness was being coached, Pinta says he’d likely suspend the deposition, demand that it take place in a live setting, and perhaps seek relief from the court.

There’s one obvious “tell” that something amiss is going on during a remote deposition, he adds.

“If a witness’s eyes are moving off the screen, then I think you’d be able to figure it out,” Pinta says.

According to the ABA’s ethics committee, there are certain red flags that should go up for litigators involved in remote proceedings.

“The use of remote communications platforms and other technologies in adjudicative proceedings and depositions, 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 ethics opinion states.

The opinion makes the case that there are inherent perils in conducting depositions or court proceedings with the witness and their lawyer, opposing counsel, and the judge in separate locations.

“It would be relatively easy for an off-camera lawyer or someone acting at the lawyer’s behest to signal a witness with undetectable winks, nods, thumbs up or down, passed notes, or the like,” the opinion states. “Surreptitious off-camera activities such as texting the witness or other real-time electronic messaging are possible and easily done.”

The authors cite to a recent case in Massachusetts federal court as a prime example of how the judiciary is trying to regulate attorney conduct during remote proceedings.

In Barksdale School Portraits LLC v. Williams, plaintiff’s counsel overheard defense lawyer Jeffrey M. Rosin feeding an answer to a witness during a remote deposition. A closer review of a recording of the deposition revealed 50 other instances in which the off-camera Rosin had provided answers to the witness.

The presiding judge in the case, U.S. District Court Judge Indira Talwani, disqualified Rosin as part of a sanctions order, then referred the managing partner of O’Hagan Meyer’s Boston office to Judge Leo T. Sorokin for attorney discipline. In January 2022, Sorokin ordered that Rosin be referred to Lawyers Concerned for Lawyers for “the limited purpose of receiving and completing counseling on better management of emotions and judgment in the face of adversity.”

In explaining the relatively light penalty, Sorokin noted that pursuant to Talwani’s sanctions order, in addition to Rosin having to withdraw from the case, his firm had forgiven a $65,000 fee owed by the client. Sorokin also credited Rosin for accepting responsibility for his conduct.

Small says Barksdale School Portraits is a perfect example of remote deposition misconduct.

“There are great opportunities for abuse,” Small says. “We do not serve our clients well by buying into this brave new world of remote depositions. There’s a reason why we talk in terms of ‘confronting’ witnesses. I don’t think you confront a witness effectively via video.”

The ABA’s ethics committee points to Barksdale School Portraits and similar decisions as object lessons for the bar.

“Lawyers have a duty to comply with the rules of professional conduct and rules of court that prohibit witness coaching, in all testimonial contexts regardless of the format of the deposition, hearing, or trial,” the authors write. “Remote coaching, like its historical antecedents, puts the perpetrating lawyer at risk of adjudicative rebukes and court-ordered sanctions, as well as disciplinary sanctions.”

Needed protocols?

While the authors of the opinion note that some jurisdictions have implemented protocols to address the problem, the committee refrains from adopting specific ethics requirements under the model rules aimed at preventing and detecting impermissible coaching in remote proceedings.

Instead, the committee lists a number of “suggested approaches” for lawyers, bar associations and courts to consider, including administrative orders governing the conduct of remote depositions, court orders directing uninterrupted testimony, and the inclusion of prophylactic remote protocols in proposed discovery plans, deposition orders, scheduling orders, trial plans and pretrial orders.

“Structuring remote proceedings in advance by way of agreement, court order, or collectively adopted behavioral norms will create greater transparency and provide helpful guardrails to guide lawyers away from unethical conduct,” the ethics opinion states.

Small believes the ABA’s ethics committee should have gone further.

“Many courts have issued detailed protocols and orders for remote depositions, but they are scattered all over the country,” Small says. “There’s an important function for the ABA to provide a model protocol.”

Pinta says he isn’t surprised by the measured approach.

“The ABA is putting out some general guidelines, and it’s up to each jurisdiction to do what it wants to do,” Pinta says. “The same rules apply to remote proceedings. You shouldn’t coach a witness via Zoom just like you shouldn’t coach a witness in someone’s office. I don’t think you need a rule to tell someone that you shouldn’t direct a witness what to say via a chatroom.”