As every law student learns in legal ethics classes, the client makes the ultimate decisions about their case while the lawyer determines the strategies, which include witness preparation. Witness preparation is a cornerstone of effective legal advocacy, yet it carries significant ethical responsibilities. Lawyers must carefully balance zealous representation with the duty to avoid coaching witnesses to provide false or misleading testimony—a challenge that has become even more pressing with the rise of virtual legal proceedings. This blog post explores the key ethical considerations, best practices, and potential consequences of crossing the line in witness preparation.

Legitimate Witness Preparation vs. Unethical Coaching

Witness preparation is not only permitted, but in some cases, failing to prepare a witness adequately may constitute a violation of the Model Rules of Professional Conduct,^[1] as affirmed in numerous cases.^[2] On the other hand, the Model Rules explicitly prohibit attorneys from assisting a witness in testifying falsely.^[3] Further, it is impermissible to improperly influence a witness’s testimony, which is often known as coaching.^[4] The fine line between ethical preparation and improper coaching, aside from coercion, can expose attorneys and prosecutors to serious consequences, particularly given the ambiguity of the Model Rules and the limited guidance from the U.S. Supreme Court.^[5]

The American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility tackled this nuanced issue in Formal Opinion 508.^[6] The opinion highlights the distinction between legitimate witness preparation and unethical efforts to improperly influence testimony. Although this line is clear in principle, it can often be ambiguous in practice.^[7] For instance, the opinion acknowledges that advising a witness that it is acceptable to say, “I do not recall,” is permissible, while encouraging a witness with statements like, “[t]he less you recall the better,” crosses the line into unethical territory.^[8] Thus, attorneys must carefully navigate such gray areas with diligence and caution to uphold ethical standards and avoid professional misconduct.

Ethical Preparatory Activities

Lawyers are permitted to engage in a variety of ethical activities during witness preparation. ABA Formal Opinion 508 lists a number of permissible preparatory activities, including reminding witnesses of their oath and the importance of truthfulness, explaining courtroom procedures and overall case strategy, advising on appropriate attire and demeanor to ensure professional presentation, and reviewing relevant documents and potential lines of questioning to refresh the witness’s memory.^[9]

Prohibited Conduct

By contrast, unethical witness preparation includes counseling a witness to omit material facts, presenting knowingly false testimony, advising disobedience of court orders or legal obligations, and offering unlawful inducements to witnesses in exchange for favorable testimony.^[10] This area is prominently governed by Model Rule 3.4(b), which prohibits a lawyer from facilitating false testimony.^[11] ABA Formal Opinion 508 also gives guidance on unethical conduct during witness testimony. Unethical conduct such as winking, passing notes, or using suggestive objections, violates Model Rules 8.4(d)^[12] and 3.4(c)^[13] by undermining the administration of justice and disobeying court rules.[14] Subtle tactics like coaching witnesses during breaks or using “speaking objections” to influence testimony are similarly prohibited and may result in sanctions.^[15]

Witness coaching generally falls into two categories: actions that are unquestionably unethical and those that may be ethical or unethical, depending on the attorney’s intent and knowledge.^[16] As it is a lot easier for lawyers to avoid the former, most of the ethical violations tend to occur in the latter context. There are common scenarios where the gray area may arise. Firstly, providing a witness with detailed information about a case—such as suggesting associated symptoms to an alleged victim of pharmaceutical harm—before seeking their independent recollection can significantly influence their testimony. This approach risks shaping the witness’s memory, whether intentionally or subconsciously, and may lead to exaggerated or fabricated claims that align with the attorney’s suggestions.^[17]

Secondly, overly restrictive admonitions could also be problematic, as it implies evading opposing counsel’s questions, going beyond the standard advice to avoid volunteering unnecessary information.^[18] Thirdly, an attorney must exercise caution when explaining the legal implications of certain testimony, as it may inadvertently encourage the client to commit perjury. For example, informing a client that their compensation could increase or decrease based on their knowledge of a specific fact might create an incentive to fabricate or withhold information to secure a more favorable outcome.^[19]

A New Concern: Technological Considerations

The rise of remote proceedings in the post-pandemic era has introduced new ethical challenges.^[20] Virtual platforms, while convenient, create opportunities for surreptitious coaching. For example, attorneys may be tempted to send messages or signals to witnesses during remote depositions or trials. Recognizing these risks, the ABA has emphasized that systemic precautions, such as court orders, deposition protocols, trial plans, and best practice guidelines, can deter surreptitious coaching and enhance transparency in remote settings.^[21]

Hernandez v. La Fortaleza, Inc.: The Consequences of Unethical Witness Coaching

The 2024 New Jersey Appellate Division case of Hernandez v. La Fortaleza, Inc. illustrates the severe consequences of unethical witness coaching.^[22] The plaintiff’s attorney was recorded coaching the plaintiff during a virtual trial recess. Notably, the attorney told the client “[y]ou must say that or the picture cannot be good. Okay? So, I want you – and the answer has to be, yes, because if you say, no, we can’t do it.”^[23] As a result, the judge declared a mistrial and dismissed the complaint with prejudice. The defendant was awarded attorney’s fees and costs. The Appellate Division affirmed the dismissal, describing the attorney’s actions as “fraud on the court.”^[24] This case underscores the severe repercussions of unethical coaching, which not only jeopardizes a client’s case but also undermines the integrity of the judicial process. These consequences are easily avoidable with proper ethical adherence.

Best Practices for Ethical Witness Preparation

Unlike the case described above, much of witness coaching occurs behind closed doors and often goes undetected, particularly given the protections of attorney-client privilege.^[25] However, even within the bounds of privilege, it is clear that ethical attorneys strive to comply with professional conduct rules while achieving the best possible outcomes for their clients. So, what does ethical and effective witness preparation look like?

Effective witness preparation requires attorneys to balance thoroughness, professionalism, and ethics to uphold the integrity of the legal process. This includes reviewing case details, outlining questions, and organizing relevant documents. Sessions should be focused, distraction-free, and tailored to the witness’s needs. Attorneys must stress truthfulness, ensuring testimony is clear and factual.[26]

Witnesses should be prepared to not only provide their testimony but also adhere to courtroom decorum and handle cross-examinations. Reviewing the witness’s background, anticipating potential issues, conducting mock examinations, and providing constructive feedback are essential. By dedicating time and care, attorneys advocate effectively while maintaining ethical standards.^[27]

Conclusion

Witness preparation is a critical aspect of legal advocacy as it can be a powerful strategy when used appropriately. While guiding witnesses through complex legal issues is necessary, any actions that resemble coaching or alter the substance of testimony risk crossing ethical boundaries. By distinguishing legitimate preparation from unethical conduct, adhering to best practices, and remaining vigilant in all settings, attorneys can uphold the integrity of the judicial process and navigate this delicate duty responsibly.

 

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[1]  ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 508 (2023).

[2]  Roberta K. Flowers, Witness Preparation: Regulating the Profession’s Dirty Little Secret, 38 Hastings Const. L.Q. 1007, 1008 (2011).

[3]  Model Rules of Prof’l Conduct R. 3.4(b) (2018) [hereinafter Model Rules].

[4]  ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 508, at 2.

[5]  See Daniel S. Medwed, Coaxing, Coaching and Coercing: Witness Preparation by Prosecutors Revisited, 16 Ohio St. J. Crim. L. 379 (2019).

[6]  ABA issues ethics guidance outlining model rule guardrails when lawyers prepare witnesses, A.B.A. (Sept. 28, 2023), https://www.americanbar.org/news/abanews/aba-news-archives/2023/09/ethics-guidance-witness-preparation/ [https://perma.cc/CT4J-7MTC].

[7]  ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 508, at 2.

[8]  Id. at 3 n.10.

[9]  Id. at 3–4.

[10]  Id. at 4.

[11]  Model Rules R. 3.4(b).

[12]  Model Rules R. 8.4(d).

[13]  Model Rules R. 3.4(c).

[14]  ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 508, at 6–8.

[15]  Id.

[16]  Liisa Renee Salmi, Don’t Walk the Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial, 18 Rev. Litig. 135, 147 (1999); Flowers, supra note 2, at 1009.

[17]  Salmi, supra note 15, at 144–145.

[18]  Id. at 145.

[19]  Id. at 146–147.

[20]  ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 508, at 8.

[21]  Id. at 9–11.

[22]  Hernandez v. La Fortaleza, Inc., 2024 WL 65217, at *1 (N.J.Super.A.D., 2024).

[23]  Id. at *2.

[24]  Id. at *5.

[25]  Flowers, supra note 2, at 1009.

[26]  Ted Hirt, Effective Witness Preparation, A.B.A. (Jan. 12, 2022), https://www.americanbar.org/groups/government_public/publications/public-lawyer/2022-winter/effective-witness-preparation/ [https://perma.cc/LT9Y-N55Z].

[27]  Id.