Ethics and Witnesses: Avoiding Impermissible Coaching, Ex Parte Communications, and Dealing With False Testimony

On November 13, 2015, ILR's Labor and Employment Law Program presented a discussion of a variety of ethical issues encountered by labor and employment attorneys in their dealings with witnesses.  These included: the difference between improper coaching and appropriately preparing your witnesses; the line between zealous advocacy and unethical behavior; the impact of social media; and the attorney's obligations when a witness provides false testimony.

Panelists John Gall, Melissa S. Woods, and Thomas N. Ciantra examined the specific ethics rules that are called into play in witness preparation; the line between permissible preparation and impermissible coaching; dealing with false testimony; ex parte contact with adverse witnesses; and deposition conduct.

Panel of Experts:
John Gaal, Member, Bond, Schoeneck & King
Melissa S. Woods, First Deputy Commisioner and General Counsel, New York City Commission on Human Rights
Thomas N. Ciantra, Partner, Cohen, Weiss and Simon LLP

Agenda (PDF, 203 KB)

Speaker Bios (PDF, 141 KB)

Materials
Articles/Treatises:
Applegate, John S., Witness Preparation, 68 Tex. L. Rev. 277, 309 (1989)
Brickman, Lester, Disconnect Between Scholarship and Reality, 31 Pepperdine Law Review 33 (2004)
Flowers, Roberta K., Witness Preparation Regulating the Profession’s “Dirty Little Secret”, 38 Hastings Constitutions Law Quarterly 4 (2011)
Hodes, W. William, The Professional Duty to Horseshed Witnesses Zealously, Within the Bounds of the Law, 30 Tex. Tech. L. Rev. 1343 (1999) (PDF, 157 KB)
Panken, Peter M. & Mirande Valbrune, “Enforcing the Prohibitions Against Coaching Deposition Witnesses,” Current Developments in Employment Law (July 29, 2004)
Wydick, Richard C., The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995) (PDF, 245 KB)

Cases:
Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa 1993)
Ibarra v. Harris County Texas, 338 Fed. Appx. 457 (5th Cir. 2009)
In re Eldridge, 82 N.Y. 161, 171 (1880)
Prasad v. Bloomfield Health Servs., Inc., 2004 U.S. Dist. LEXIS 9289 (S.D.N.Y. 2004)

Opinions:
D.C. Bar Ethics Opinion No. 79 (DOCX, 12 KB)
New York City Bar Association Formal Opinion 2010-2
New York State Bar Association Formal Opinion 843
NYSBA Formal Opinions 962 (2013)
Oregon State Bar Formal Opinion 2001-164
West Virginia, L.E.O. 2015-02

Rules:
Federal Rules of Civil Procedure 30(d)
New York Rules of Court
New York Rules of Professional Conduct

Other References:
Kestler, Jeffrey L., Questioning Techniques and Tactics, 9.04, at 494 (2d. Ed. 1992)
Restatement (Third) of the Law Governing Lawyers § 116
Rogers, Joan C., “Witness Preparation Memos Raise Questions About Ethical Limits,” ABA/BNA Lawyers’ Manual on Professional Conduct (Feb. 18, 1998)
Salmi, Don’t Walk The Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial, 18 Rev. Litig. 135 (1995)
“Witness Coaching,” Professional Responsibility: Examples and Explanations (Aspen Publishers, 2d ed. 2007)