Where is the ethical line between legitimately preparing a witness to testify and improperly coaching the witness, including over video?

Plain-English summary

The opinion addresses where the line falls between permissible witness preparation and impermissible coaching, both before testimony and during it, and how that line applies given remote technologies that make secret coaching easier. It begins from the premise that "some quantum of client and witness preparation is appropriate and an affirmative ethical responsibility," grounded in the duties of competence and diligence; a lawyer who fails to prepare a witness can be sanctioned.

The opinion describes a wide range of accepted preparation techniques, including reminding the witness they are under oath, emphasizing the importance of telling the truth, explaining that saying "I do not recall" can be truthful, reviewing documents, and suggesting word choices that clarify meaning. It then identifies conduct that is firmly established as unethical. Foremost is counseling or assisting false testimony: per the opinion, "counseling a witness to give false testimony or assisting a witness in offering false testimony, for example, is a violation of at least Model Rule 3.4(b)." The opinion notes that instigating a lie can be subtle, such as telling a witness "the less you recall the better," and that scripting testimony, violating sequestration orders, and encouraging fabrication are likewise improper.

On compensation, the opinion states that "it is also unethical to compensate a lay witness for the substance of their testimony or to condition such payment on the content of the witness's testimony, even if that payment is for 'truthful' testimony." A nonexpert witness may be paid for time and reasonable expenses, but not for the content of testimony.

The analysis shifts during in-progress testimony. The opinion explains that overt manipulation of testimony is generally conduct prejudicial to the administration of justice under Rule 8.4(d), and that violating a tribunal's rule or order restricting coaching is knowing disobedience under Rule 3.4(c). Examples include passing notes, signals, and improper recess conferences. The opinion stresses that "all lawyers have an ethical obligation to understand how relevant technology works," and that "the Model Rules that constrain unethical witness coaching extend to all testimonial contexts, regardless of format," including remote proceedings.

In practice

Under this opinion, a lawyer may and often must prepare a witness, using the range of accepted techniques the opinion describes, but may not counsel or assist false testimony, obstruct evidence, script or program testimony, violate sequestration orders, or pay a lay witness for the content of testimony. During testimony, the opinion holds that overtly influencing the witness, or violating a tribunal's coaching restriction, can violate Rules 8.4(d) and 3.4(c), and that these prohibitions apply in remote proceedings. The opinion identifies prophylactic measures that lawyers and adjudicators may adopt for remote testimony, such as protocols and court orders, but characterizes them as prudent rather than ethically required.

Common questions

Q: Is it ethical to prepare a witness before they testify?

A: Yes. The opinion describes witness preparation as accepted, essential, and often an affirmative ethical responsibility under the competence and diligence duties, and notes a lawyer can be sanctioned for failing to prepare a witness.

Q: What turns preparation into improper coaching?

A: Per the opinion, counseling or assisting a witness to testify falsely is unethical and violates at least Rule 3.4(b). Scripting testimony, encouraging fabrication, and subtle cues to shade or suppress testimony also cross the line.

Q: Can a lawyer pay a fact witness?

A: A lay witness may be reimbursed for time and reasonable expenses, but the opinion says it is unethical to pay for the substance of testimony or to condition payment on its content, even for "truthful" testimony.

Q: Do these rules apply to remote depositions and hearings?

A: Yes. The opinion holds the limits on coaching apply to all testimonial formats, including remote proceedings, and reminds lawyers of their duty to understand the relevant technology.

Background and rules framework

The opinion interprets the rules that protect the integrity of the justice system and another party's access to evidence: Rule 3.4 (fairness to opposing party and counsel), especially 3.4(a), (b), and (c); Rule 3.3 (candor toward the tribunal); Rule 8.4(d) (conduct prejudicial to the administration of justice); and the duties of competence and diligence under Rules 1.1 and 1.3, including the Rule 1.1 Comment [8] duty to understand relevant technology. It also references Rule 1.2(d) (no assisting criminal conduct such as perjury).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.4 (fairness), including 3.4(a), 3.4(b), 3.4(c)
• ABA Model Rule 3.3 (candor to the tribunal), 8.4(d) (administration of justice)
• ABA Model Rule 1.1 (competence; Comment [8] technology), 1.3 (diligence)
• ABA Model Rule 1.2(d) (no assisting crime), 1.4, 2.1

Cases:

• Geders v. United States, 425 U.S. 80 (1976)
• Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993)

Other opinions cited:

• ABA Formal Op. 96-402 (1996): compensating a nonexpert witness for time, not content

See also

• ABA Formal Op. 512: Generative AI Tools
• ABA Formal Op. 514: Advising Orgs on Constituent Risk
• ABA Formal Op. 513: Duty to Inquire Into Each Representation

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-508.pdf