Ezel / Ethics Opinions / NVBAR
NVBAR October 25, 1995

Can a criminal defense lawyer urge a victim or witness to avoid a subpoena or not testify?

Short answer: The Committee concluded that a defense attorney who discourages a domestic battery victim from testifying, urges the victim not to cooperate with the prosecutor, or tries to influence the victim's testimony violates SCR 173 and SCR 203 and may commit a crime, and that giving legal advice or counsel to the victim/prosecution witness creates a conflict of interest under SCR 157.

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This page answers the general question as of 1995. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1995
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Responding to reports that defense attorneys in domestic-violence cases were discouraging victims from cooperating, the Committee addressed whether a criminal defense attorney may urge a domestic battery victim to avoid service of a subpoena, refrain from testifying, or not cooperate with the prosecutor. It found such conduct improper and noted the analysis applies to any criminal or civil matter, not just domestic battery.

On obstruction, SCR 173 (identical to ABA Model Rule 3.4) bars a lawyer from unlawfully obstructing another party's access to evidence and from requesting a non-client (other than a relative, employee, or agent) to refrain from voluntarily giving relevant information; SCR 203 (identical to Model Rule 8.4) makes conduct prejudicial to the administration of justice professional misconduct. The Committee concluded that discouraging or influencing a victim's testimony, including encouraging avoidance of a subpoena, violates both rules, relying on People v. Kenelly and North Carolina State Bar v. Graves. It added that such conduct could be a crime under NRS 199.305 (intimidating or dissuading a victim or witness), and that a conviction would itself violate SCR 203.

On conflicts, the Committee explained that providing legal advice or counsel to the victim/prosecution witness while representing the defendant creates divided loyalties prohibited by SCR 157 (nearly identical to Model Rule 1.7). Citing People v. Stewart, where an attorney's joint representation of a defendant and the chief prosecution witness was an actual conflict requiring reversal, the Committee distinguished permissible witness interviews from impermissible counseling, and advised that the defense attorney avoid giving the victim/witness legal advice.

Currency note

This opinion was issued in 1995, before Nevada's 2006 adoption of the current Nevada Rules of Professional Conduct (the renumbered Rules 1.0 et seq. that replaced the former Supreme Court Rules) and the related Ethics 2000-based revisions. The fairness-to-evidence-and-witnesses rule is now Rule 3.4, the misconduct rule is now Rule 8.4, and the conflicts rule is now Rule 1.7. The cited criminal statutes (NRS 199.305, 193.330) have since been amended. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific point mentioned here.

Common questions

Q: Can a defense lawyer tell a victim to dodge a subpoena or skip testifying?

A: No. The opinion concluded that discouraging a victim from testifying or encouraging avoidance of a subpoena violates SCR 173 and SCR 203 and could even be a crime under NRS 199.305.

Q: Can the lawyer do this indirectly, through the client?

A: No. The opinion stated the defense attorney should not take any action, personally or through an agent or client, to discourage the witness from testifying or to influence the testimony's content.

Q: Can the defense attorney give the victim/witness legal advice?

A: No. Per the opinion, advising the victim/prosecution witness while representing the defendant creates a conflict of interest under SCR 157; the lawyer may interview witnesses but must not counsel them.

Background and rules framework

The opinion interprets former SCR 173 (fairness to opposing party and counsel, identical to Model Rule 3.4), former SCR 203 (misconduct, identical to Model Rule 8.4, including conduct prejudicial to the administration of justice), and former SCR 157 (conflicts of interest, akin to Model Rule 1.7), reading them with Nevada's witness-intimidation statutes.

Citations and references

Rules of Professional Conduct:

  • Model Rule 3.4 / former Nev. SCR 173 (fairness to opposing party; obstructing access to evidence and witnesses)
  • Model Rule 8.4 / former Nev. SCR 203 (misconduct; conduct prejudicial to the administration of justice)
  • Model Rule 1.7 / former Nev. SCR 157 (conflicts of interest)

Statutes:

  • Nev. Rev. Stat. 199.305 (preventing or dissuading a victim or witness); Nev. Rev. Stat. 193.330 (attempt)

Cases:

  • People v. Kenelly, 648 P.2d 1065 (Colo. 1982) (paying a witness to be unavailable is prejudicial to justice)
  • North Carolina State Bar v. Graves, 274 S.E.2d 396 (N.C. App. 1981) (influencing a witness not to testify is unethical)
  • People v. Stewart, 511 N.Y.S.2d 715 (1987) (joint representation of defendant and chief prosecution witness an actual conflict)

See also

Source

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