Ethics Corner Article

Dear Ethics Committee:

I am a new lawyer preparing my client to testify.  This is my first experience preparing a witness to testify under oath.  What general ethical principles do I need to keep in mind as I do so?

This is the first in a series of articles on topics related to an attorney’s obligations with respect to witness testimony. This first article will address the basic ethical framework of witness preparation. The second article will review the attorney’s ethical obligations when their client or witness offers false evidence. The third article will address the attorney’s ethical obligation when a client misbehaves during trial or deposition testimony.

Witness preparation begins when a lawyer first communicates with the client and continues through all work performed on the client’s behalf.  It is helpful if from the outset of the representation to explain to the client the attorney’s role, the applicable law and procedural rules, and the client’s overall objectives. The client’s testimony is of course important to the overall course of the representation. This means that witness preparation is vital.  Each attorney utilizes their own means and methods to prepare a witness to testify depending upon the demands of the case, the client’s capacity, the relevant documents, and numerous other factors. The purpose of this article is to define the limits of ethically permissible witness preparation without impeding the attorney’s range of discretion. This article will describe general best practices the Committee believes to be useful across a broad range of cases – again without intending to impede each attorney’s range of discretion, judgement and experience.

This article briefly describes the applicable rules. Rule 1.1 requires attorneys to provide competent representation, including proper preparation and attention to detail. Rule 1.2(d) provides that an attorney may not advise a client to engage in criminal or fraudulent conduct, or help the client engage in such conduct. Rule 3.3 provides that an attorney may not knowingly offer evidence the attorney knows to be false and must take remedial measures if the attorney knows the client or a witness has done so. Comment 13 to Rule 3.3 provides that the time limit on the lawyer’s obligation to rectify false statements persists until a final judgment in the proceeding has been affirmed on appeal or the time for appellate review has passed. Rule 3.4 provides that an attorney shall not obstruct another party’s access to evidence. Rule 4.4(a) provides that in representing a client, an attorney shall not take any action if the lawyer knows or it is obvious that its primary purpose is to embarrass, delay or burden a third person. Rule 8.4 prohibits violations or attempted violations of the Rules of Professional Conduct, criminal acts that reflect adversely on an attorney’s honesty, trustworthiness or fitness in other respects, and conduct involving dishonesty, fraud, deceit or misrepresentation.

Ethical Conduct in Witness Preparation

On August 5, 5023, the American Bar Association issued Formal Opinion 508 – The Ethics of Witness Preparation in which it listed numerous examples of permitted (if not required) witness preparation activities. Each example is followed by the Rule or Rules the Committee believes to be especially implicated. An attorney not following one or more of the below examples does not necessarily reflect or imply unethical conduct:

  • Reminding the witness their testimony will be given under oath. Rule 1.1 (attorney must provide competent representation with skill, proper preparation, and attention to details necessary to avoid harm).
  • Emphasizing the importance of telling the truth. Rule 3.3.
  • Explaining that a truthful answer of, “I don’t recall” is acceptable. Rule 3.3.
  • Explaining the testimonial process as well as case strategy and procedures. Rule 1.1; 1.2.
  • Suggesting appropriate attire, demeanor and decorum. Rule 1.1
  • Providing context for the witness’s testimony. Rule 1.1; 3.3.
  • Asking the witness questions about their probable testimony and recollection. Rule 1.1.
  • Identifying and discussing other testimony or evidence that has been or may be presented and exploring the witness’s version of events in light of that information. Rule 1.1; 3.3.
  • Reviewing documents or physical evidence with the witness, including if necessary refreshing the witness’s testimony. Rule 1.1; 3.3.
  • Identifying lines of testimony and expected cross-examination. Rule 1.1; 1.2; 3.3.
  • Suggesting words, phrases or concepts to help the witness answer questions clearly. Rule 1.1; 1.2; 3.3.
  • Telling the witness to wait until a question is complete before responding. Rule 1.1; 1.2.
  • Telling the witness not to guess or speculate. Rule 1.1; 1.2; 3.3.
  • Advising the client to answer the question that is asked without volunteering information. Rule 1.1; 1.2; 3.3.
  • Testing the witness’s recollection of events.
  • Refreshing the witness’s recollection.
  • Discuss with the witness potential areas of cross examination.
  • To test the witness’s demeanor in response to cross examination.

See Restatement (Third) of the Law Governing Lawyers, § 116, cmt. b (2000). A more comprehensive list of acceptable witness preparation appears in Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1, 17-18 (Sept. 1995)

Unethical Conduct in Witness Preparation

The ABA outlined examples of unethical witness preparation as well, including:

  • Counseling a witness to give false testimony. Rules 1.2(d); 3.3; 8.4; see RSA 629:2, I (criminal solicitation); 629:3, I (conspiracy).
  • Helping a witness give false testimony. Id.
  • Advising a client to disobey a court order. Rules 1.2(d); 3.3; 8.4.
  • Offering an unlawful inducement to a witness. Rules 1.2(d); 3.3; 8.4; see RSA 641:5, I (Witness tampering).
  • Advising a witness to evade a subpoena to appear at a proceeding or to not attend any proceeding to which they have been summoned. See RSA 641:5.

The ABA suggested that instigating a client to lie may include advising a witness to “downplay” certain facts, In Re Meltzer, 21 N.Y.S. 3d 63 (2015), encouraging a client to misrepresent the location of a slip-and-fall accident to have a viable claim, In Re Rios, 965 N.Y.S.2d 418 (2013), and programming a witness’s testimony, In Re Brooke P. Halsey, Jr., Case No. 02-O-10195-PEM (State Bar of California Hearing Dep’t August 1, 2006). In In Re Ver Dught, 825 S.W.2d 847 (Mo. 1992), the Missouri Supreme Court held that an attorney violated Rules 3.3(a)(4) and 8.4(c) for advising his client in a social security proceeding not to mention during her testimony that she had remarried. In Committee on Prof’l Ethics & Cond. of the Iowa State Bar Ass’n v. Crary, 245 N.W.2d 298 (Iowa 1976), the Iowa Supreme Court revoked the license of an attorney who knowingly permitted his client to offer extensive false testimony in a deposition.

In State v. McCormick, 259 S.E.2d 880 (N.C. 1979), the North Carolina Supreme Court held that “[i]t is not improper for an attorney to prepare his witness for trial, to explain the applicable law in any given situation and to go over before trial the attorney’s questions and the witness’ answers so that the witness will be ready for his appearance in court, will be more at ease because he knows what to expect, and will give his testimony in the most effective manner that he can. Such preparation is the mark of a good trial lawyer.” State v. Earp, 571 A.2d 1227, 1234-35 (Md. 1990), the Maryland Supreme Court held that “[a] prudent attorney will, whenever possible, meet with the witnesses he or she intends to call. [The witness preparation session] involves matters ranging from recommended attire to a review of the facts known by the witness”. Similarly, at a hearing in United States v. Brindley, 14-CR-0468 (N.D. Ill. 2015) (August 31, 2015), the District Court held that a lawyer’s use of a question-and-answer script to prepare witness testimony was not prohibited coaching absent evidence that the lawyer told the client to lie or knew that the client’s testimony was false.  The Court noted there was no bright line between rigorous preparation and improper coaching.

Although there is no bright line between rigorous preparation and improper coaching, it is essential that an attorney obtains facts from their client or another witness without influencing the answers or encouraging inaccurate answers.  While preparing a client or witness to testify is necessary, attorneys must be cautious in how that preparation is done and must comply with the applicable ethical rules outlined above.

This Ethics Corner Article was submitted for publication review to the NHBA Board of Governors at its March 21, 2024 meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison at: