With the increase in electronic hearings that were spurred on by the pandemic, it was only a matter of time before we began seeing disciplinary actions based on a lawyer “coaching” a witness while testifying.  One the recent installments is in Massachusetts, where a lawyer stipulated to a public reprimand for “repeatedly coach[ing] his witness on answering questions” by “surreptitiously provid[ing] his client with answers.”  In this instance, the lawyer and client were participating in a remote deposition and both were wearing masks.  In total, there were about 50 instances of the lawyer coaching the witness—which opposing counsel was able to detect by reviewing a videotape of the deposition.

Interestingly, the Massachusetts Board of Bar Overseers noted that there was no prior sanction in the state “based solely on a lawyer coaching a witness during a deposition.”  But the opinion did note that there were two cases from other states (Florida and Arizona), and perhaps unsurprisingly both are recent cases (2021) involving electronic communications.

Ultimately, the stipulation included violations of Rule 3.4(c) (knowingly disobeying an obligation under the tribunal’s rules), 8.4(d) (administration-of-justice provision) and 8.4(h) (fitness-to-practice provision, one of my personal favorites!).  But it is interesting that the Board did not mention or find a violation of Rule 3.4(b).  That rule proscribes “counsel[ing] or assist a witness to testify falsely.”  We often talk about the subsection in the context of witness coaching, but my guess is that it’s almost impossible to prove that the attorney was coaching the witness to testify “falsely,” but rather just telling the witness how to respond.

For those who are interested, the ABA recently issued a formal ethics opinion on witness preparation.

Link to Sanction here:  https://bbopublic.massbbo.org/web/f/PR-2023-12.pdf.