Talking to a witness

For purposes of this discussion, we will divide witnesses into three general categories. Those are clients, opposing parties, and unrepresented third parties.

There is, of course, not prohibition against a lawyer talking to his client prior to the client testifying. In fact, that is precisely what the lawyer is supposed to do.

As to all three types of witness, a lawyer may not counsel or assist a witness to testify falsely or offer an inducement to a witness that is prohibited by law.

A lawyer may not request that a witness refrain from voluntarily talking to the opposing party or counsel, unless that witness is:

(i) a client or

(ii) a relative, employee or agent of a client.

The lawyer must also reasonably believe that the interests of the witness will not be adversely affected by keeping quiet. See Rule 3.4 of the Mississippi Rules of Professional Conduct.

When a lawyer talks with unrepresented third parties, Rule 4.3 requires all of the following:

– A lawyer shall not state or imply that the lawyer is disinterested.

– When the lawyer should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

– The lawyer shall not give legal advice to an unrepresented person. However, the lawyer may advise him to get his own attorney if the lawyer believes there is a conflict between the interests of the client and the other person.

Rule 4.2 states “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

The Mississippi Bar’s Ethics Opinion No. 215, rendered March 04, 1994, says this : “In representing a client, a lawyer may ethically communicate, ex parte, with an unrepresented individual that was formerly employed by a represented party.”

Put more simply, if a lawyer is suing a company, he can communicate directly with former employees of that company.

Further, the Comment to Rule 4.2 states:

In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

Thus, communication with some current employees is also permitted. But, if the other side learns of the communication, the lawyer is going to have to carry the burden of showing that the employee is outside the scope of Rule 4.2.

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Craig Painter

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