The Ethics of Contacting Witnesses
| Publication year | 2017 |
| Pages | 40 |
PROFESSIONAL CONDUCT AND LEGAL ETHICS
By JOSEPH G. MICHAELS.
This article addresses a lawyer’s ethical duties when contacting witnesses, including unrepresented witnesses, witnesses in criminal cases, those employed by government agencies and non-government organizations, and former employees of an organization.
Alawyer’s contacts with unrepresented witnesses, non-party witnesses in criminal cases, adverse party witnesses, current and former employees of an adverse-party organization, and government officials present a quagmire of legal and ethical considerations regarding the subject matter of the contact, the propriety of the contact, and the role of the contacted person. This article summarizes and synthesizes four CBA Formal Ethics Opinions covering these topics and provides suggestions for ethically contacting witnesses.
Opinion 65: Guidelines for Advising Witnesses on Contacts by Opposing Counsel
In Opinion 65, the CBA Ethics Committee (committee) addressed a lawyer’s obligations concerning a witness’s decision to submit to a pre-trial interview.[1] It is unethical for a lawyer or the lawyer’s representative “to advise or to imply to a potential witness” that the witness should not grant a pre-trial interview to opposing counsel or opposing counsel’s agent.[2] On the contrary, prosecutors and defense counsel should advise non-party witnesses that (1) it is both proper and the duty of both parties to attempt to interview all potential witnesses, (2) it is in the interest of justice for any potential witness to be available for a pretrial interview provided the witness gives voluntary and informed consent, and (3) the witness is under no obligation to submit to a pre-trial interview for either side.[3] That decision is wholly the witness’s own.[4]
In Opinion 65, the committee approvingly cited People v. Antunes, in which the Colorado Court of Appeals rejected a defendant’s contention that the prosecution’s failure to tell its witnesses that they “should” talk to the defense required reversal.[5] The Antunes Court reviewed the discovery requirements of Colo. R. Crim. P. 16[6] and the ABA Standards for Criminal Justice.[7] Synthesizing those authorities, the Court concluded that the prosecution correctly told witnesses that whether to talk with defense counsel was “up to all of you,” that “you may, and if you don’t want to, you don’t have to,” and that it was “your choice.”[8]
While Antunes viewed the claim within the prosecutorial misconduct framework,[9] the committee in Opinion 65 endorsed this view from an ethical standpoint, observing that “free access” to potential witnesses was “integral” to the administration of justice.[10] The prosecution’s statements that a witness “can,” but does not have to, talk with opposing counsel were consistent with the ethical standard that it is a witness’s choice whether to do so, and highlighted the opposing choices available without suggesting the witness should not speak with opposing counsel.[11]
In short, the committee determined that lawyers cannot interfere with efforts of opposing counsel to conduct pre-trial interviews.[12] This includes refraining from affirmatively advising the witness that he should not submit to a pre-trial interview.[13]
Opinion 102: Use of Subpoenas in Criminal Proceedings
Opinion 102 can be analyzed in terms of two distinct requirements for using subpoenas in criminal proceedings.
The Furnishing Requirement
In Opinion 102, the committee opined that a subpoena duces tecum must be produced to opposing counsel or an unrepresented party upon issuance, unless there is a court order to the contrary.[14] The committee issued Opinion 102 in response to an amendment to Colo. R. Crim. P. 17(c)[15] to prevent misuse or abuse of a subpoena duces tecum in criminal proceedings.[16] This misuse could allow a lawyer issuing the subpoena duces tecum to have access to information, documents, photographs, or other objects and evidence before opposing counsel or an unrepresented defendant could review them.[17]
According to the committee, when an attorney issues a subpoena for production of documents, information, photographs, or other tangible objects or evidence (i.e., a subpoena duces tecum), the attorney must first furnish a copy of the subpoena to opposing counsel (or the unrepresented party) as required under either the Colorado[18] or federal19rule of criminal procedure.[20] Contemporaneously providing the subpoena duces tecum allows opposing counsel to protest any request that is unreasonable or oppressive.[21] The committee warned that efforts to undermine either the Colorado or federal rule was unethical, and noted that some such efforts may rise to the level of criminal conduct.[22]
In Opinion 102, the committee acknowledged that parties are allowed to contact witnesses in pre-trial investigations, but it re-emphasized the point made in Opinion 65 that witnesses are not compelled to speak with them.[23] However, issuing a subpoena duces tecum without contemporaneously providing a copy to opposing counsel could suggest the witness had an affirmative obligation to submit to a pre-trial interview, even if the rule of criminal procedure imposes no such obligation.[24] Thus, by contemporaneously providing the subpoena duces tecum to opposing counsel, there could be no abuse of the subpoena to subvert the witness’s right to decline a pre-trial interview. Instead, the witnesses could simply attach requested documents, assuming the request is not otherwise onerous.[25]
Likewise, a lawyer may not use subterfuge to access otherwise privileged or confidential information by way of subpoena.[26] In particular, when a lawyer contacts a non-party witness after serving a subpoena duces tecum, the lawyer cannot mislead that witness into disclosing privileged or confidential information.[27]Rather, the lawyer should identify himself or herself and clearly state the purpose of the contact.[28]
Inadvertent Disclosure
If a lawyer accidentally receives any documents that are obviously privileged or confidential, he must not review the privileged materials,[29] must notify both opposing counsel (or the unrepresented party) and the producing witness about the accidental disclosure,[30] and must follow opposing counsel’s (or, if unrepresented, the adverse party’s) instructions to refrain from reviewing the information.[31] The lawyer also must make every effort, where applicable, to notify the person entitled to invoke the privilege regarding the information accidentally disclosed if that privilege-holder is not the adverse party or producing witness.[32] There is an ethical obligation to refrain from reviewing privileged materials barring permission from the opposing party or a judicial resolution permitting review.[33]
Opinion 69: Communicating with an Employee or Former Employee of an Adverse Party Organization
In Opinion 69, the committee addressed the propriety of communicating with an employee or former employee of an adverse party organization.[34] Primarily applying Colo. RPC 4.2,[35] the committee opined that when a lawyer knows an organization to be represented, the lawyer must[36] seek consent of the represented organization’s lawyer before contacting one of its constituents if (1) the constituent[37] supervises, directs, or regularly consults with the organization, (2) the constituent has the ability to obligate the organization with respect to that party’s opinion on the matter, or (3) the party’s statement or omission may be imputed to the organization.[38] Further, the lawyer cannot direct another to communicate with the organization’s constituent and thereby avoid the requirement of contacting and seeking consent of the organization’s lawyer.[39] The committee observed that this was consistent with Colo. RPC 4.2’s raison d’être, that is, to “prevent the deprivation, undermining, or bypassing of a client’s right to the advice of counsel.”[40] Thus, Colo. RPC 4.2 protects a client from potential overreaching by opposing counsel, interference by other lawyers, or uncounseled disclosure of information.[41]
The constituents and communications protected by Colo. RPC 4.2 constitute a larger group than those protected solely by the attorney–client privilege.[42] Thus, to ascertain whether a contact is permissible, the attorney must evaluate four factors: (1) the substance of the communication; (2) the subject of representation; (3) whether the attorney “knows” the other party to be represented, which requires actual knowledge of the representation in the matter at issue; and (4) whether the communication was “authorized by law or court order.”[43] Nevertheless, while an attorney may not communicate directly with the adverse party, the parties themselves may communicate with each other.[44]
The committee then addressed the scope of opposing counsel’s representation and the scope of the communication itself.[45] It highlighted that if the organization is represented and there is any question whether the subject of the communication is within the scope of the representation, the lawyer should check with the organization’s lawyer.[46] But if the lawyer is communicating with the adverse-party-organization’s constituent outside the scope of the organization’s lawyer’s representation, there is no violation of Colo. RPC 4.2.[47]
The committee noted that consent of the organization’s lawyer is not required for contact with a former constituent.[48] Nevertheless, in contacting a former employee, the lawyer cannot use methods that violate the legal rights of the...
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