No Coaches Wanted

• Pages: 9-9
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Jeffrey M. Marchese
• Subject Matter: Civil Law

here are limits to attorney

conduct in preparing a wit-

ness to testify, as highlighted in

Formal Opinion 508 of the ABA’ s

Standing Committee on Ethics

and Professional Responsibility. This

formal ethics opinion provides guid-

ance for complying with the ABA Model

Rules of Professional Conduct when

preparing a witness or client to testify

before a deposition or adjudicative

proceeding. Opinion 508 explains the

dierence between legitimate witness

preparation and unethical “coaching.”

Opinion 508 acknowledges that

“preparing a witness to testify … is con-

sidered an essential tactical compo-

nent of a lawyer’s advocacy in a matter

in which a client or witness will provide

testimony.” The opinion further notes

that “under the Model Rules, the failure

to adequately prepare a witness would

in many situations be classif‌ied as an

ethical violation. But, in some witness-

preparation situations, a lawyer clearly

steps over the line of what is ethically

permissible. Counseling a witness to

give false testimony or assisting a wit-

ness in oering false testimony, for

example, is a violation of at least Model

Rule 3.4(b).” The opinion stresses the

importance of lawyers understand-

ing the important ethical distinc-

tions between discussing testimony

as opposed to seeking to improperly

inf‌luence it.

Opinion 508 provides examples of

potential unethical and ethical conduct

prior to and during a deposition or

adjudicative proceeding. According to

the opinion, potential unethical conduct

prior to a deposition or proceeding

includes advising a client or witness to

disobey a court order, procuring a wit-

ness’s absence from a proceeding, or

compensating a lay witness for the sub-

stance of their testimony or condition-

ing such payment on the content of the

witness’s testimony.

Potential unethical conduct during a

deposition or adjudicative proceeding

concerns speaking objections or overt

eorts to inf‌luence a witness’s testi-

mony, such as by winking at a witness.

No Coaches Wanted

Improper speaking or suggestive objec-

tions go beyond stating an objection

and instead inf‌luencing what the witness

may say and impeding the deposing

attorney’s discovery. The opinion notes

that some jurisdictions have rules to

prohibit objections that have a coaching

eect on a witness and restrict speaking

objections during a deposition.

Opinion 508 also identif‌ies examples

of ethical conduct in preparing a wit-

ness: telling a witness to tell the truth;

advising that a truthful answer of “I do

not recall” is an acceptable response;

explaining case strategy and procedure;

suggesting proper attire, demeanor,

and word choice; inquiring into prob-

able testimony and recollection; review-

ing evidence to refresh the witness’s

recollection; identifying lines of ques-

tioning and potential cross-examina-

tion; telling the witness to testify to

only what they remember; and answer-

ing the question posed without volun-

teering information.

“Focusing on having a witness tell

the truth is always the best advice,”

advises Jeanne M. Huey, Dallas,

TX, Co-Chair of the ABA Litigation

Section’s Ethics & Professionalism

Committee. “It is our job as attorneys

to work with the facts and not create

them,” explains Joseph V. Schaeer,

Pittsburgh, PA, Co-Chair of the

Litigation Section’s Pretrial Practice &

Discovery Committee.

Opinion 508 acknowledges that

“[t]he task of delineating what is neces-

sary and proper and what is ethically

prohibited during witness prepara-

tion has become more urgent with the

advent of commonly used remote tech-

nologies, some of which can be used

to surreptitiously coach witnesses in

new and ethically problematic ways.”

As technology advances and more case

activities are accomplished remotely,

attorneys need to be conscious of

potential ethical issues that may arise

in remote proceedings when preparing

a witness or conducting a deposition.

“Remote proceedings can create new

opportunities for mischief. For example,

the digital note passing, text messaging,

By Jerey M. March ese, Litigation New s Associate Editor

emails, and chat functions that can

make it harder to detect,” Schaeer

oers.

Despite identifying certain risks that

come along with remote depositions,

however, the opinion notes that rules

that constrain witness coaching extend

to all testimonial contexts, regardless

of format. Lawyers always have a duty

to comply with the Model Rules of

Professional Conduct and the rules of

the court that prohibit witness coach-

ing in all testimonial contexts. Remote

coaching, like its historical precedent,

puts the perpetrating lawyer at risk of

adjudicative reprimands, disciplinary

sanctions, and court-ordered sanctions.

The opinion explains that it is imper-

ative for lawyers and decision-makers

to consider prophylactic measures

designed for use in remote proceed-

ings to prevent and detect instances

of unethical coaching and misconduct.

The committee suggests creating struc-

ture in remote proceedings in advance

by way of agreement, by court order,

or by collectively adopting behavioral

norms that will create more transpar-

ency and provide helpful guidelines for

lawyers to avoid unethical conduct.

“Remote proceedings are here to

stay due to convenience, eciency, and

being cost-eective,” Huey believes. “A

uniform set of instructions from local or

state bars may help with these issues,”

she adds. But lawyers and litigants also

have the ability to protect themselves.

“Parties should set boundaries before-

hand regarding conduct of the depo-

sition so there is no confusion over

conduct,” Schaeer suggests.

SPRING 20 25 • VOL. 50 NO. 3

9 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORL D

Published in Litigation News Volu me 50, Number 3, Sprin g 2025. © 2025 by t he American Bar A ssociation. Re produced with per mission. All righ ts reserved. Thi s information or an y portion there of may not be copied or

disseminated in an y form or by any means or s tored in an electro nic database or re trieval system wi thout the express w ritten consen t of the American B ar Associatio n.