Communication with Witnesses

Attorney communication with witnesses and other people involved in a case can be divided into two categories, each of which has unique rules. The first category is where an attorney communicates with an opposing party, while the second category involves attorney communication with other witnesses in the case.

Communications with Opposing Parties

There is a basic ethical rule when it comes to communications with an adversary who is represented by another lawyer. Essentially, with few exceptions, a lawyer may never communicate with a person he knows is represented by another lawyer. See Model Rule 4.2. If the lawyer has the consent of the adversary’s lawyer to approach the adversary, then communication may be ethically permissible. For the most part, the goal is to avoid unfair influence, harassment, overreaching, and harming the trust between the adversary and his lawyer.

If a represented person initiates contact with the opposing lawyer, the lawyer should explain at once that he may not enter into a discussion, and certainly not one related to the representation, without the consent of the adversary’s attorney. See Model Rule 4.2. 

Generally the prohibition against contact with a represented party extends to any party represented by counsel, and not just the adversary. There are exceptions, however. In New York, for example, lawyers may contact represented people who are not adversaries. This rule is particularly helpful when it comes to dealing with represented parties who are dissatisfied with their lawyer’s work, and approach a new lawyer with the intent of hiring him to replace the client's current counsel. In such a case, the approached lawyer need not seek approval from the individual’s attorney to carry on a discussion with the client. 

Corporate Communications 

The “no-contact” rule also may extend to corporations who are represented by counsel. Usually, the rules hold that anyone with managerial responsibilities may not be contacted directly by an adversary’s lawyer, without consent. Also, anyone in the corporation whose words or admissions may impact on the corporation’s liability in a suit should not be contacted directly by an opposing attorney without consent. A lawyer may interview a former employee of a company, however, even without consent, unless the former employee has a lot of knowledge about privileged information. See Camden v. Maryland, 910 F. Supp 1115 (D. Md. 1996). 

EXAMPLE: You represent a plaintiff in a personal injury suit against a meat packaging company that employs the plaintiff. As such, you may not personally contact the plaintiff’s manager, or any other manager in the company, whose “act or omission in the matter may be imputed to the organization for purposes of civil or criminal liability, or whose statement may constitute an admission on the organization’s part.” See Model Rule 4.2, Comment [4]. 

Lawyers have an important obligation when they speak with individuals who are not represented by counsel in a matter. The lawyer must not state or imply that he is a disinterested party. If the lawyer thinks that the individual may be mistaken as to the lawyer’s allegiance, then the lawyer must try to correct the individual’s misunderstanding. See Model Rule 4.3.

The above rule is important when it comes to corporations. Lawyers may contact or visit businesses in order to research or gather evidence. As such, there is a chance that an employee who is not clued into the lawyer’s role in a case could be mistaken as to the lawyer’s adversarial role. Thus, the lawyer must ensure that the person with whom he is speaking understands that the lawyer is not simply a disinterested party. Certainly, if the unrepresented person seeks legal advice, the lawyer must tell the person that he cannot provide the advice, and that the person should retain alternative counsel. See Model Rule 4.3, Comment [1].

Communications with other Witnesses

The ethics authorities are concerned that a lawyer will undermine the process by which witnesses provide a court truthful testimony. 

Previously, we discussed rules related to the prohibition against obstructing other parties’ access to evidence. Witness tampering is a type of prohibited obstruction of evidence. Therefore, the rules hold that lawyers may not prevent a witness from appearing or do anything to keep a witness from appearing in court. See Model Rule 3.4(a). 

Also, a lawyer may never help a witness testify falsely. The rules in many jurisdictions are designed so as to prevent lawyers from attempting to influence the testimony of witnesses in indirect fashion. For example, most jurisdictions have banned the process of paying witnesses on a contingent fee, in which the witness is only compensated if the hiring party prevails in court. Such fees induce the witness to testify in a manner that is supportive of the hiring party. 

For the most part, witnesses may be paid reasonable sums for expenses and for time spent. However, the payments must not constitute inducements to testify falsely or to testify in a way that pleases the hiring party.