MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2012-08
Communication by a Potential Witness
From time to time, members ask the Committee to address an issue that the Committee believes important but which under its rules the Committee cannot directly answer. In furtherance of its mission, the Committee believes it can best serve the bar by following up in these situations by posing hypothetical questions and offering its analysis of how those questions should be answered under the Rules of Professional Conduct. The following questions are representative of questions the Committee has been asked, but has been unable under its rules to answer.
- Whether Rule 3.4 permits a lawyer to request a person with knowledge relevant to the matter (“Potential Witness”) not to speak to opposing counsel without the lawyer present, and
- Whether Rule 3.4 permits a lawyer to convey to a Potential Witness the client’s preference/desire/request that the person not speak with opposing counsel with or without the client’s lawyer present.
Rule 3.4 provides:
A lawyer shall not:
(f) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
Because the questions involve a lawyer’s communication with another person, either Rule 4.2 or Rule 4.3 may come into play. Rule 4.2 prohibits a lawyer from communicating with a person about a subject where the person has legal representation on the matter. In the two scenarios presented, that means that if the Potential Witness1 has legal representation regarding the Potential Witness’ involvement in the controversy as a witness or potential future party, then the lawyer may not communicate with that person about the subject. On the other hand, Rule 4.3 addresses the lawyer’s responsibility when communicating with an unrepresented person. Rule 4.3 provides:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
Based on this Rule, the Committee believes that an attorney in speaking with an unrepresented Potential Witness must clarify that the attorney’s interests and those of the witness are not the same and that the attorney cannot and does not represent the witness. Having cautioned the witness and with certain caveat discussed below, the attorney may tell the witness that the witness is free to talk to anyone or refuse to talk with anyone as the witness chooses and that the witness may wish to seek legal counsel. The attorney may tell the Potential Witness that the witness has a right to speak2 with the other side and may choose to do so with or without the attorney being present but if the witness so chooses, the witness may refuse to speak with the other side without the attorney being present so long as doing so is not equivalent to instructing the witness to remain silent. The attorney may tell the witness that he/she represents a party/patient who opposed the granting of a HIPAA Qualified Protective Order or other order that permits ex parte contacts with the witness. Although the rule remains the same in criminal cases, prosecutors and defense counsel should be cautious in their discussions with Potential Witnesses to be certain that their communications cannot be construed as intimidation or so as to affect a defendant’s right to a fair trial. As noted in the Restatement 3rd Law Governing Lawyers, there is a fine line between advising a witness of a right not to cooperate with the other side and inducing a witness not to cooperate:”
The line between informing a witness of the right not to cooperate or to cooperate only under restrictive conditions and attempting to induce noncooperation may be a fine one. On the prohibition against a prosecutor’s instructing a witness not to cooperate with the defense, see, e.g., Gregory v. United States, 369 F.2d 185, 187-88 (D.C.Cir.1966), cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 (1969); United States v. Henricksen, 564 F.2d 197 (5th Cir.1977) (plea bargain required co-defendant not to testify in any manner regarding defendant); Gilbert v. State, 547 So.2d 246, 249 (Fla.Dist.Ct.App.1989) (prohibition under rule of criminal procedure); State v. York, 632 P.2d 1261, 1263-65 (Or.1981); Lewis v. Court of Common Pleas, 260 A.2d 184, 188 (Pa.1969). On informing a witness of the right not to cooperate, compare, e.g., United States ex rel. Trantino v. Hatrack, 408 F.Supp. 476, 481-82 (D.N.J.1976), aff’d in part & rev’d in part on other grounds, 563 F.2d 86 (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978) (emphasizing witness’s right not to cooperate is not equivalent to instructing witness to remain silent), with, e.g., State v. York, supra, 632 P.2d at 1264 (improper for prosecutor to advise witnesses of consequences of cooperation and adding “that it would be better if they didn’t say anything”).
Restat 3d of the Law Governing Lawyers, § 116. See also: State v. Williams, 326 S.C. 130, 485 S.E.2d 99 (1997); and Matter of Alcantara, 144 N.J. 257 (1995).
In Maryland and throughout the country, the cases and opinions directly interpreting the rule are sparse and vary in context from the criminal to the civil, from prosecutor to defense and defense to plaintiff. According to one commentator3 the rule goes back to the early 20th century finding seminal origin in Canon 39 adopted by the ABA in 1928 and in a 1935 ABA Opinion – ABA Opinion 131, a formal opinion construing Canon 39. From this foundation and axiom developed that “fact witnesses are not the property of any party, they are the law’s witnesses.”
Professor Bauer discusses the history of the Rule in detail and we quote from his discussion portions of that history.
“Dissatisfaction with the Code and a desire to repair the legal profession’s image after Watergate led the ABA in 1977 to appoint a commission, chaired by Omaha attorney Robert Kutak, to review professional conduct standards. . . . The ABA House of Delegates debated the proposal over the next two years, made some amendments, and adopted the Model Rules in August 1983.
* * *
“In response to bar criticism of the vagueness and potentially broad scope of the duties expressed in the discussion draft, the Kutak Commission, in its proposed final draft, replaced the prohibitions of “improper” conduct relating to evidence and witnesses with provisions making it impermissible for a lawyer to “unlawfully obstruct another party’s access to evidence” or “offer an inducement to a witness that is prohibited by law.” At the same time, the commission added a new subsection (f) to define a duty that went beyond what other law required.
“Rule 3.4(f) closely tracked the approach of Formal Opinion 131 by making it impermissible for a lawyer to “request a person other than a client to refrain from voluntarily giving relevant information to another party.” Like the earlier ABA pronouncement, it recognized an exception allowing such requests to be made to the client’s employees. The exception was extended to cover nonemployee agents and relatives of the client as well, while adding the proviso that the lawyer must “reasonably … believe that the person’s interests will not be adversely affected by refraining from giving such information.”
“The official comment that appeared in the Proposed Final Draft (and was ultimately adopted by the ABA) offered little explanation for subsection (f). The comment noted generally that “the procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties,” and that all of Rule 3.4’s restrictions are designed to secure “fair competition in the adversary system.”
“When Rule 3.4 was taken up by the ABA House of Delegates, Geoffrey Hazard, the Kutak Commission’s Reporter, opened the discussion of subsection (f) by noting that no direct counterpart appeared in the Code. He described it as an effort “to deal more precisely than present law” with a problematic issue. Four state and local bar associations had filed amendments seeking to strike the provision. A representative of the Philadelphia Bar Association presented the case for eliminating subsection (f). He argued that it was unnecessary given “our open and wide-ranging discovery process,” and that lawyers have good reason to suggest to witnesses that they give information only in a deposition, in order to protect against the risk of witness tampering or other abuses in unmonitored ex parte interviews. Former ABA President David Brink then spoke to oppose the amendment. He defended the provision as supplying “needed guidance to lawyers in an area where they would otherwise be very much in doubt as to how to proceed,” and as furthering both “the need for access to all useful information” and the need to protect nonclients from advice that might be contrary to their interests. . . .
“The amendment was then defeated by a voice vote.4 (Footnotes omitted.)”
A recent interpretation of the Rule comes from the Washington D.C. Bar Ethics Committee which construed Rule 3.4(f) in conjunction with the question of whether a plaintiff’s attorney could advise the plaintiff’s treating physician not to have ex parte communications with defense counsel. In D.C. Bar Ethics Opinion No. 360, that committee concluded that a plaintiff’s lawyer could demand that the treating physician comply with privacy laws and privilege and any other confidentiality obligations that exist and may communicate to the physician the client’s position as to the scope of information that may be legally disclosed. The committee, nevertheless, concluded that the lawyer could not “request or instruct the physician not to have communications with opposing counsel or request or instruct that any communications take place if the lawyer is present.” The essence of this advice mirrors ours.
Clearly, an attorney has a duty while representing a client to make certain that the client’s interests are protected. Thus, where a Potential Witness holds information about a client that is protected by a privilege, law or legally enforceable agreement, the lawyer must demand the witness adhere to the obligations the law imposes. Once impediments to disclosure no longer exist, the lawyer must still be mindful of the client’s interests, but can no longer act to prevent the witness from testifying or prevent the witness from providing information that is not protected whether through discovery or through communications with the opposing side.
In further support of this Committee’s views on this subject, we point to the Restatement 3rd of the Law Governing Lawyers §116 which in Subsection 4 mirrors Rule 3.4(f) and in its comments provides:
e. Requesting a person not to cooperate with another party. A lawyer may inform any person of the right not to be interviewed by any other party, but a lawyer may not request that a person exercise that right or attempt otherwise to induce noncooperation, except as permitted under Subsection (4). A lawyer may also advise of the right to insist on conditions, such as that the lawyer or the person’s own lawyer be present during any interview or that the interview be recorded. It is also permissible in the course of preparing a friendly witness for testimony at a deposition or hearing (see Comment b hereto) to warn the witness not to volunteer testimony not directly responsive to a question. . . . (The Restatement continues by discussing the exceptions permitted based on a person’s status as a family member or employee of a client.)
Restat 3d of the Law Governing Lawyers, § 116
In addition to the D.C. Bar other committees and courts have interpreted the Rule. In United States v. Carrigan, 804 F.2d 599, 601, 603-04 (10th Cir. 1986) the Tenth Circuit discussed the Rule when it reviewed a trial judge’s order requiring the depositions of witnesses that the prosecution had attempted to encourage to withhold cooperation from the defense. In State Bar of Mich., Ethics Op. RI-302 (1997), the Michigan Bar Ethics Committee concluded that neither prosecutor and defense counsel could attempt to induce a witness from speaking to the other side and also concluded that a prosecutor could not knowingly acquiesce in a police officer’s efforts to do so; In S.C. Bar Ethics Advisory Comm., Op. 99-14 (1999), the South Carolina Ethics Committee concluded that a city solicitor while acting as the municipal prosecutor, could not instruct city police officers to refrain from discussing their cases with defense counsel. In Nevada, the State Bar Standing Committee on Ethics and Professional Responsibility in Formal Op. No. 23 (1995) concluded that in a domestic battery case a defense attorney could not advise the prosecuting witness to refrain from speaking with the prosecution and could not offer the witness any legal advice.5 In so concluding, Nevada’s Committee noted:
This opinion specifically addresses only domestic battery situations. Members of the bar should recognize that this opinion is applicable to all cases whether criminal or civil. This Committee sees not (sic) ethical distinctions between a defense attorney’s obligation in a domestic battery case or any other criminal or civil matter where similar issues arise.
In Davis v. Dow Corning Corp., 530 N.W.2d 178 (Mich. Ct. App. 1995), the Michigan intermediate appellate court discussed the issue as related to whether plaintiff’s counsel could instruct the plaintiff’s treating physician not to speak to the defense, concluding that it was improper to do so:
“In the instant case, the court found that the conduct of plaintiffs’ counsel in issuing a press release and an open letter to the treating physicians was in violation of MRPC 3.4(f), which prohibits an attorney from asking a person other than a client to refrain from voluntarily providing relevant information to another party. Additionally, by failing to await and abide by the trial court’s ruling, counsel exceeded his right to preserve his point for appeal. See Zal v Steppe, 968 F.2d 924, 928 (CA 9, 1992).
“Plaintiffs’ assertion that the protective order forbids both patients and their attorneys from discussing all potential issues in this case with anyone is clearly incorrect. The order imposes no such blanket restriction. At most, it simply prohibits plaintiffs or their attorneys from requesting treating physicians to refuse to speak with defense counsel in the absence of plaintiffs’ attorney. Nothing in the order prevents patients or their counsel from discussing any other issues involved in the case with anyone, including treating physicians.
“The order was drawn narrowly to remedy the ethical violations committed by plaintiffs’ counsel. Compare Upjohn Co v Aetna Casualty & Surety Co, 768 F Supp 1186, 1216-1217 (WD Mich, 1990) (magistrate properly required the defendant, which had violated ethical rules by having its investigators improperly question the plaintiff’s former employees, to deliver a letter to former employees identifying the interviewer and the interviewer’s purpose and indicating the reader’s right to refuse to be interviewed). It was an appropriate means of ensuring that neither plaintiffs nor their attorneys were permitted to influence the treating physicians to refuse to engage in any ex parte interviews, thereby rendering meaningless the right to seek such interviews that was recognized in Domako.”
Davis v. Dow Corning Corp., 209 Mich. App. 287, 294-295 (Mich. Ct. App. 1995).
The foregoing discussion leads the Committee to the conclusion that advising a Potential Witness that the attorney’s client “prefers” the witness not to speak to the opposing side or to testify would each violate Rule 3.4(f). Because the attorney cannot request or instruct the Potential Witness not to speak with the opposing side, the attorney cannot relay a request from the client to the same effect. An attorney should always be acting on behalf of the client, so the prohibitions of the Rule contemplate that the attorney’s communications include those that are channeled through the attorney from and on behalf of the client.
In litigation where the court authorizes opposing counsel to speak with certain witnesses, such as was the case in the facts under consideration in the D.C. Bar’s opinion No. 360, the issue of whether the communications are to be ex parte or with counsel present ought to be put before the court before the order is issued to protect a client’s interests in having counsel present during a witness interview. Doing so, protects the client’s interests and those of the Potential Witness.
4841-2743-8095, v. 1
1 Generally, throughout this opinion unless the context indicates otherwise, a Potential Witness is not a relative or an employee or other agent of a client and the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information. This is because the Rule allows a lawyer to counsel a relative, employee or other agent of a client not to speak to the opposing side or volunteer testimony if the lawyer reasonably believes that doing so will not adversely affect that person’s interests. Thus, for purposes of this opinion, a Potential Witness is not a relative, employee or other agent of the client.
2 Assuming there are no issues of privilege, confidentiality or laws that might restrict that right.
3 BAUER, JON; ARTICLE: BUYING WITNESS SILENCE: EVIDENCE-SUPPRESSING SETTLEMENTS AND LAWYERS’ ETHICS, 87 Or. L. Rev. 481 (2008). Professor Bauer’s thesis argues that settlement agreements that suppress evidence through confidentiality provisions violate the Rules of Professional Conduct. There do not appear to be any opinions that adopt this thesis.
4 Id.
5 A lawyer in speaking with a Potential Witness who the lawyer cannot ethically represent must be cautious not to offer the Potential Witness advice that could be considered legal advice.