The Ethics of Prepping Your Client

Transcription

1 Virginia Trial Lawyers Association Annual Convention March 2015 n The Greenbrier The Ethics of Prepping Your Client The Honorable Michael F. Urbanski John C. Shea Kathleen M. McCauley materials by John E. Lichtenstein and Joanna M. Meyer

2 I. Synopsis ETHICAL WITNESS PREPARATION John E. Lichtenstein, Esq. Joanna M. Meyer, Esq. LICHTENSTEINFISHWICK PLC VIRGINIA TRIAL LAWYERS ASSOCIATION ANNUAL CONVENTION MARCH 26, 2015 a. Generally, preparing a client or witness for a trial or deposition includes: i. introducing the witness to the legal process; ii. helping the witness feel and be prepared to answer questions truthfully; iii. helping the witness feel and be prepared to answer questions with tactical and strategic insight into his case; iv. helping the witness understand the importance of his testimony in the larger context of the facts of the case; v. helping the witness understand the law controlling the case, including evidentiary considerations; vi. refreshing (not directing) the witness s memory if necessary and if possible; and vii. reviewing and preparing from places, things, documents, photographs, and other physical evidence that may be introduced. b. Because the attorney-client privilege and/or work product doctrine largely protect an attorney s conduct in preparing a witness from scrutiny, a common understanding of ethical considerations and obligations promotes uniformity in practice. Compliance with the Rules... depends primarily upon understanding and voluntary compliance.... Preamble, Virginia Professional Guidelines. c. Violations of rules of ethics may result in: evidence being excluded or stricken, jury being unfavorably instructed, contempt of court, sanctions, disciplinary proceedings, criminal or civil liability, public ridicule, loss of job or career. II. Relevant Rules of Professional Conduct a. Applicability: Virginia state courts and both the Eastern and Western Districts of Virginia use the Virginia Rules of Professional Conduct (VRPC). See Va. Sup. Ct. R. pt. Six, II (incorporating VRPC); E.D. Va. Loc. Adm. R. 83.1(I), at 42 (applying id.) (Jan. 9, 2015); see, e.g., Lewis v. CSX Transp., Inc., 2001 U.S. Dist. Lexis (W.D. Va. 2001) ( While this court utilizes the Rules of Professional Conduct as adopted by the Supreme Court of Virginia, it must nevertheless look to federal law in order to interpret and apply those rules.... (citation omitted)). 1

3 b. Key VRPC Provisions for Preparing Witnesses i. VRPC 3.4 A lawyer shall not: (a) Obstruct another party s access to evidence...; (c) Falsify evidence, counsel or assist a witness to testify falsely...; (h) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:... the person in a civil matter is a relative or... employee or other agent of a client.... ii. VRPC 3.3(a)(4) A lawyer shall not knowingly... offer evidence that the lawyer knows to be false. If a lawyer... comes to know of its falsity, the lawyer shall take reasonable remedial measures. iii. VRPC 1.2(c) 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.... iv. VRPC 8.4(b), (c) (misconduct involving dishonesty, deceit). c. Comparing American Bar Association Model Rules of Professional Conduct (MRPC) to VRPC: While Virginia has not formally adopted MRPC, VRPC tracks the organization of MRPC and many provisions are similar. Also, much literature on witness preparation cites to MRPC. Thus, a comparison is instructive. See attached Table Comparing Virginia Rules of Professional Conduct to Model Rules of Professional Conduct. i. VRPC 3.4 vs. MRPC 3.4: Note that in criminal cases, VRPC 3.4(h) does not exempt employees/agents from the prohibition against requesting witnesses to refuse to communicate with adversaries. ii. VRPC 3.3(a)(4) vs. MRPC 3.3(a)(3): The two Rules are similar, and despite differences in language, the substantive content of the commentaries is similar. iii. VRPC 1.2(c) vs. MRPC 1.2(d): The Rules are identical. However, compare VRPC cmt. 10 ( The lawyer is not permitted to reveal the client s wrongdoing, except where permitted or required by Rule 1.6. ), with MRPC cmt. 10 ( In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. ). 2

4 III. Representative Issues a. Generally: Prepare client and client s witnesses for questions about past events and about present understandings/beliefs; verify truthfulness of responses; i. Versus: Allowing, condoning, suggesting, encouraging, inducing, or coaching false testimony or evasion of truthful answer (e.g., by witness saying does not remember or by telling witness not to answer during testimony under cloak of attorney-client privilege or work product doctrine), when attorney knows testimony is false, mistaken, or misleading (even if witness believes true), or when attorney has not verified truth, VRPC 3.4(c); id. 3.3(a)(4); id. 1.2(c); id. 8.4(b), (c). 1, 2 ii. Trials vs. depositions: From an evidentiary perspective, strategies for preparing a witness for trial might differ from deposition preparation strategy. See, e.g., Va. Sup. Ct. R. 4:1(b)(1) ( Parties may obtain discovery regarding any matter, not privileged, which is relevant.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. ); Fed. R. Civ. P. 26(b)(1) ( Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. ). iii. Corporate representatives: The corporation must make a good-faith effort to designate people with knowledge of the matter sought by the opposing party and to adequately prepare its representatives so that they may give complete, knowledgeable, and nonevasive answers in deposition. Spicer v. Universal Forest Prods., 2008 U.S. Dist. Lexis 77232, at *10 (W.D. Va. Oct. 1, 2008) (Urbanski, J.). See also Martin v. Nordic Group of Cos., 61 Va. Cir. 13, (2003) ( Rule 4:5(b)(6), like Rule 30(b)(6) of the Federal Rules, is designed to elicit information from the corporation, not the individual deponent.... The corporation had a duty to ensure that the designee is prepared to answer questions.... ). b. Attorney-client privilege and work product limitations: Prepare client and maintain any materials for such preparation in confidence to preserve potential for attorney-client privilege or work product protection, keeping in mind that facts therein, circumstances of communication, and the nature of what is undisclosed may not be protected, see, e.g., Va. Sup. Ct. R. 4:1(b)(6)(i) (claiming privilege in discovery); id. 2: (attorney-client privilege is governed by common law); id. 2:1101(b) ( The law with respect to privileges applies at all stages of all actions, cases, and proceedings. ); Commonwealth v. Edwards, 235 Va. 499 (1988) (discussing work product protection and attorney-client privilege); see also Va. Sup. Ct. R. 2:505 (physician-patient privilege is according to statute, 3

5 including Va. Code ); id. 2:505(D) (requiring patient consent for an attorney to obtain information about the patient from a healthcare provider other than pursuant to discovery, with certain exceptions including a Rule 4:10 evaluation); id. 2:506 (mental health professional-client privilege). Monitor nature and treatment of documents and things carefully to ensure fact or opinion 3 work product is maintained if possible. i. Versus: Preparatory non-client witness s communications, not being privileged, will be subject to disclosure, including materials provided to a witness or received from a witness during preparation, absent work product-based protection. Compare, e.g., Mills v. MCC Behavioral Care, Inc., 37 Va. Cir. 225, 226 (Richmond Cir. Ct. 1995) ( Under the common law, the adverse party has a right to examine material used to refresh recollection but not those used to refresh memory prior to testimony. (citing McGann v. Com., 15 Va. App. 448, (1992) (looking to other jurisdictions to apply work-product protection to materials used to refresh a witness s memory before testifying))), with Wilson v. Rogers, 53 Va. Cir. 280, 282 (Portsmouth Cir. Ct. 2000) ( [T]o the extent that the materials sought relate to the preparation of expert testimony for trial they should be produced. (citing Lamonds v. General Motors Corp., 180 F.R.D. 302 (W.D. Va. 1998))). ii. Refreshing memory/ federal law: In contrast to Virginia Rules of Evidence Rule 2:612 ( If while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to [production.] (emphasis added)) and Virginia common law, Federal Rule of Evidence 612 explicitly gives the court discretion in granting disclosure of a writing used to refresh a witness s (or client s) memory before testifying. See also Fed. R. Civ. P. 26 (duties of disclosure and protections); MRPC 3.4 (Fairness to Opposing Party & Counsel). The privilege or protection might be waived for those writings which may fairly be said in part to have an impact upon the testimony of the witness, Brown v. Tethys Bioscience, Inc., 2011 U.S. Dist. Lexis , at *6 (E.D. Va. Oct. 11, 2011) (quoting Nutramax Lab., Inc. v. Twin Lab., Inc., 183 F.R.D. 458, 468 (D. Md. 1998)) (internal citation and quotation marks omitted). iii. See also Va. Code ; Va. Sup. Ct. R. 2:705 ( The expert may... be required to disclose the underlying facts or data [of his opinion or inference] on cross-examination. ); id. 2:706 (experts use of learned treatises). c. Communications with adverse representatives: Counsel may inform client s witnesses (not adverse witnesses, see (iii.) below) that they may but are not obligated to talk with anyone; 4

6 i. Versus: Request[ing] a person other than a client to refrain from voluntarily giving relevant information to another party, which is prohibited by VRPC 3.4(h), or advising that the witness refuse to talk with opposing counsel, or discouraging communication, VRPC 3.4(a), (h); ii. Exception: If the witness is a relative, current or former employee, or other agent of client (often including retained experts) in a civil matter, and if counsel reasonably believes the person s interest will not be adversely affected by his refraining from communicating, counsel may request the witness not to talk with opposing counsel, pursuant to VRPC 3.4(h)(2). 1. Virginia Legal Ethics Opinion ( LEO ) 1639 (4/24/95): Va. Code (D) prohibits opposing counsel s obtaining information via ex parte communications with patient s treating physician. 2. See also VRPC 4.2 cmt. 7 (prohibiting communications by a lawyer with persons in an organization s control group or persons who may be regarded as the alter ego of the organization); Pruett v. Va. Health Servs., 69 Va. Cir. 80, 86 (Lancaster County Cir. Ct. 2005) (discussing different courts treatment of control group and holding no bar to communicating with former control group and non-control group employees). a. LEO 459 (7/21/82): Only if the attorney first receives permission from the corporation s counsel to communicate with [employees for the corporation that are in the position to commit the corporation to specific courses of action] may he do so. b. LEO 347 (12/4/79): There is nothing ethically impermissible with an attorney communicating with employees of a corporation adverse to the interests of the attorney s client in litigation so long as the employee does not occupy a position... that would lead one to believe the employee is the corporation s alter ego. c. LEO 1670 (4/1/96): MRPC 4.2 and VRPC 4.3 are similar in prohibiting communications with represented persons without consent of the attorney. However, the commentary to MRPC makes MRPC 4.2 a broader prohibition as compared to the VRPC commentary, and some circuit courts and federal courts in Virginia have... applied a Model Rules approach and prohibited ex parte contacts [both under a control group/ alter ego theory and in vicarious liability situations]. d. Bryant v. Yorktowne Cabinetry, Inc., 538 F. Supp. 2d 948 (W.D. Va. 2008) (Urbanski, J.) (discussing Virginia s bright line rule that attorneys may communicate ex parte with a former employee of an organization even if he was a member of the control group). 5

7 iii. CAVEAT: VRPC 4.3(b) prohibits giving advice to unrepresented persons whose interests have a reasonable possibility of being in conflict with the client s. 1. LEO 1795 (6/30/04): A criminal defense attorney s advising the victim-witness that she did not have to talk with the Commonwealth s Attorney did not violate VRPC 3.4(h) (general prohibition on requesting non-clients to refrain from giving relevant information to another party) but did violate VRPC 4.3(b) (prohibition on advising adverse unrepresented persons). 2. LEO 1426 (9/16/92): A criminal defense attorney improperly and unethically advised the victim-witness that she did not have to talk with the police or Commonwealth s Attorney s Office, as such advice violated [current VRPC Rules 4.3(b) and 8.4(b), (c)]. d. Court orders: Determine and follow any relevant local rules, case-specific court orders; know and consider individual judge s preferences, prior findings, or jurisprudence; i. Versus: Failing to realize subjective, case-specific mandates. e. Being straightforward: Immediately and frequently emphasize to the witness that it is imperative to tell truth, and that preparation is about how to tell the truth; i. Versus: Allowing witness to believe he or she should read between lines by giving deceptive or less-than-accurate testimony to help the case, VRPC 3.4(c); id. 1.2(c); id. 8.4(b), (c). 1 ii. LEO 1650 (9/8/95): [I]f the expert s perjured testimony is so material to the [expert opinion] that it corrupts the opinion, [counsel must] reveal the fraud to the tribunal. iii. LEO 924 (6/11/87): Finding improper the use (by implication or otherwise) of fabricated witness statements in settlement negotiations, even though opposing counsel already had the statements, because the lawyer learned of the fabrication. f. Suggestibility: Witness should be encouraged to give candid and truthful account of relevant facts before discussing applicable law; i. Versus: Explaining law and what facts are needed for strategic advantage, then asking witness if needed facts exist, in attempt to induce false testimony or to induce a witness holding some perception/memory to say a contrary perception/memory, VRPC 3.4(c); id. 1.2(c); id. 8.4(b), (c). 1, 2 g. Uncertainty in memory and perception: As necessary, manage uncertainty or gaps in perception and/or memory by providing witness with evidence or materials that 6

8 may refresh memory without supplying or creating testimony, and/or by preparing rehabilitation of credibility; i. Versus: Influencing witness to fabricate or adopt an inaccurate or nonexistent perception/memory, or to use demeanor or false testimony to assert confidence about perceptions when witness is uncertain, VRPC 3.4(c); id. 1.2(c); id. 3.3(a)(4); id. 8.4(b), (c). 1, 2 h. Mistakes in memory and perception: Correct mistakes in perception and/or memory (based on attorney s knowledge or strong belief regarding truth/accuracy, given other evidence) by providing witness with materials that reveal mistake or refresh memory (but see (b.), supra, regarding disclosure); do not elicit testimony known to be inaccurate; i. Versus: Eliciting mistaken testimony to help the case, VRPC 3.4(c); id. 3.3(a)(4). 1, 2 i. Word choice: Help witness choose words, demeanor, and manner of description in delivering truthful testimony; i. Versus: Scripting answers with words that are inaccurate, VRPC 3.4(c); id. 3.3(a)(4). 1, 2 j. Witness intends to testify falsely: Attempt to dissuade client from testifying falsely; refuse to offer false evidence; advise client of risk of ethical duty to disclose perjury; and take reasonable remedial measures, which may include disclosure, if attorney has offered material evidence and learns of its falsity; i. Versus: Allowing false testimony or not taking timely remedial measure, VRPC 3.4(c); id. 3.3(a)(4). 1 ii. See VRPC 3.3(a) and commentary (describing duty of candor to the tribunal); id. 1.6(c)(2) (requiring attorney to first request client to disclose fraud relevant to the representation on the tribunal). k. Special duties of prosecutors: Timely disclose, per VRPC 3.8(d), a witness s correction to a former position when the correction serves to exculpate the defendant, such as a witness admitting to having wrongly identified the defendant; i. Versus: Refusing to call the witness and failing to timely disclose knowledge of the change in evidence that tends to exculpate the defendant. ii. See also VRPC 3.8(a) (prohibiting maintaining a charge that the prosecutor knows lacks probable cause), (c) (prohibiting instructing a person to withhold information from defendant), (e) (prohibiting encouraging investigators or others helping with prosecution to make an 7

9 extrajudicial statement that would have a substantial likelihood of interfering with the fairness of a jury trial). iii. LEO 1862 (7/23/12): The Rule 3.8(d) ethical prosecutorial duty to timely disclose exculpatory evidence differs from the legal duty pursuant to Brady v. Maryland, 373 U.S. 83 (1963). A timely disclosure is one that is made as soon as practicable considering all the facts and circumstances of the case [and without intentional delay lacking justification or good cause]. 1. See also Tuma v. Commonwealth, 285 Va. 629, 639 n.2 (2013) (disclosure was timely under Brady, which is not a canon of prosecutorial ethics ); Workman v. Commonwealth, 272 Va. 633, (2006) (providing the analysis for violation of the prosecutorial duty first enunciated in Brady). IV. Oft-Cited Examples for Discussion a. ROBERT TRAVER, ANATOMY OF A MURDER (1958): 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.... Maybe, [the defendant] said, maybe I was insane. See attached video clip. b. In re Attorney Discipline Matter, 98 F.3d 1082 (8th Cir. 1996) (transcript of recording of attorney inducing redirection of client s testimony during recess) (attached). 8

10 Attachments Table Comparing Virginia Rules of Professional Conduct to Model Rules of Professional Conduct Cited Literature 1. Stephen M. Goldman & Douglas A. Winegardner, The Anti-False Testimony Principle and the Fundamentals of Ethical Preparation of Deposition Witnesses, 59 CATH. U. L. REV. 1 (2009) (focusing on the Anti-False Testimony Principal as primary obligation, and contrasting duties in a historical-record context with duties in a present-understanding context). 2. Liisa Renée Salmi, Don t Walk the Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial, 18 REV. LITIG. 135 (1999). 3. Elizabeth Thornburg, Rethinking Work Product, 77 VA. L. REV (1991). Other Materials 4. Stephen D. Easton, Can We Talk?: Removing Counterproductive Ethical Restraints Upon Ex Parte Communication Between Attorneys and Adverse Expert Witnesses, 76 IND. L.J. 647, , 732, (2001). 5. Cited Legal Ethics Opinions 6. Richard C. Wydick, The Ethics of Witness Coaching, 17 CARDOZO L. REV. 1 (1995). 7. John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277 (1989)). Examples for Discussion 8. ANATOMY OF A MURDER (Otto Preminger 1959). 9. In re Attorney Discipline Matter, 98 F.3d 1082 (8th Cir. 1996). 9