About two weeks ago, the ABA Standing Committee on Ethics and Professional Responsibility issued a new Formal Ethics Opinion (No. 508) on the ethics of witness preparation. Its abstract reads:
A lawyer’s role in preparing a witness to testify and providing testimonial guidance is not only an accepted professional function; it is considered an essential tactical component of a lawyer’s advocacy in a matter in which a client or witness will provide testimony. Under the Model Rules of Professional Conduct governing the client-lawyer relationship and a lawyer’s duties as an advisor, the failure adequately to prepare a witness would in many situations be classified as an ethical violation. But, in some witness-preparation situations, a lawyer clearly steps over the line of what is ethically permissible. 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 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.
You can read the full opinion here. You can read more about it over at Ethical Grounds.
UPDATE 9-17-23: Lawyer Ethics Alert Blog has a comment on the Opinion here.
UPDATE 10-5-23: The Law for Lawyers Today has a comment here.
UPDATE 11-4-23: The Louisiana Legal Ethics Blog has a comment here.
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