UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 90-19
The plaintiff's lawyer has two (2) key witnesses, a mother and daughter. Neither wants to go through a deposition. One is elderly and has trouble recalling events when being deposed by the defense. The plaintiff and defense lawyers stop the deposition, and out of the presence of the witnesses, the defense offers to stop the deposition if the plaintiff's lawyer will not call the elderly witness. Plaintiff's lawyer says he cannot stipulate to that and offers to ask the witness questions for the defense lawyer. The plaintiff's lawyer tells the defense lawyer not to inform the witnesses of the offer since it would prejudice the witnesses against the plaintiff's lawyer and case. The defense lawyer reconvenes the deposition. After the deposition is over, the defense lawyer informs the witness of his offer not to take her deposition if the plaintiff's lawyer would not call her as a witness at trial.
Question:
Did the defense lawyer violate the Rules of Professional Conduct when he told the witness of his offer to cancel her deposition if the plaintiff would not call her as a witness at trial?
Summary:
Disclosure to an opposing witness, after her deposition, of the fact that her deposition could have been canceled if the plaintiff's attorney would not call her as a witness at trial would not be ethically improper.
Opinion:
The Rules of Professional Conduct regarding fairness to opposing parties and counsel are imperatives. They provide that a lawyer shall not destroy or conceal evidence, improperly influence witnesses or use obstructive tactics in discovery. The statement of opposing counsel to the plaintiff's witness after her deposition that she would not have been deposed if plaintiff's lawyer would not use her as a witness at trial did not violate Rule 3.4 in that the statement did not obstruct the discovery process nor did the lawyer request the witness to refrain from voluntarily providing information.
A lawyer may communicate with a witness of the opposing side but the lawyer may not improperly influence the witness not to testify. Under Rule 3.4 of the Rules of Professional Conduct, a lawyer must be fair to the opposing party and counsel. The rule is as follows:
A lawyer shall not:
(a) Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) Knowingly disobey an obligation under the rules of tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) In pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) Request of person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) The personal is a relative or an employee or other agent of a client; and (2) The lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
The situation presented does not indicate that any of the above prohibited acts took place. The statement of the defense lawyer took place after the deposition of the witness. The defense lawyer did not obstruct plaintiff's access to evidence or induce the witness to testify falsely. The statement was not an inducement that is prohibited by law because the defense lawyer did not tell the witness not to testify. Rather he commented after her deposition that her deposition would not have been necessary if the plaintiff would not call her as a witness at trial. This statement did not obstruct the discovery process. ABA Formal Opinion No. 131 (1935) states that it is improper for an attorney to influence persons to refuse to give information to opposing counsel which may be useful or essential in establishing the true facts and circumstances of the dispute. In the situation presented, the remarks of the defense attorney came after the deposition was concluded. If the remarks had been made prior to the deposition, then the defense lawyer may have violated the rules in that his remarks may have influenced the witness not to testify.
It appears in this case that the defense lawyer made a remark to the plaintiff's witness in disregard of the request of the plaintiff's lawyer. Under the old Canons of Ethics, Canon 7 provided that lawyers should exhibit courtesy and good faith to each other. The new Rules of Professional Responsibility admonish lawyers to exhibit fairness to opposing parties and their counsel by directing and mandating certain conduct. While the new rules are more specific in regulating lawyer conduct, lawyers should not abuse the spirit of the Rules set out in the Preamble which states that lawyers should be guided by personal conscience and the approbation of professional peers.