June 2014 | Earn one hour of MCLE Credit in Legal Ethics
By Alison P. Buchanan
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Any trial lawyer knows that a big part of trial work is
expecting the unexpected. No matter how much you plan and prepare, there is no
way to be ready for every possible scenario that may come up during trial. This
article will help you avoid and navigate unexpected ethics issues that arise
during trial. Use these tips so that you can swiftly address (or dodge
altogether) those unplanned ethics scenarios and get back to preparing for that
Maintaining your ethics while presenting your case
Rule 5-200 of the California Rules of Professional Conduct
governs trial conduct. In addition to prohibiting a lawyer from presenting
false evidence, it also prohibits lawyers from engaging in other unethical
conduct during trial. For example, Rule 5-200 prohibits lawyers from asserting
personal knowledge of the facts at issue, except when testifying under oath.
Case law addressing unethical trial conduct is sparse, and
sometimes it seems that evaluating whether certain conduct during trial is
ethical is a purely subjective matter. However, there are some notable cases
that help define certain boundaries of ethical behavior in trial.
Hawk v. Superior Court (1974)
42 Cal.App.3d 108, provides a laundry list of what not to do in trying a case.
The court affirmed a contempt finding against an attorney who, throughout
trial, advised his client to disobey a court order, engaged in misconduct
during voir dire, referred to his client by name and referenced his
personal friendship with the client, humiliated a witness, repeated questions
even after the court sustained an objection, improperly impeached a witness,
displayed an offensive personality, failed to “yield respectfully to the
”and told the jury that “even the prosecutor had reasonable doubt as to the defendant’s guilt.”
Another case, People v. Love (1961) 56 Cal.2d 720, clarifies
the boundaries of behavior in closing argument. There, the California Supreme
Court reversed and remanded a judgment imposing the death penalty and order
denying a new trial based on the prosecutor’s improper closing argument. The court
reminded that an attorney’s closing argument to the jury “must be based solely
upon those matters of fact of which evidence has already been introduced or of
which no evidence need ever be introduced because of their notoriety as
judicially noticed facts.” The court noted that although an attorney may argue
matters not in evidence that are common knowledge, counsel “may not, however,
under the guise of argument, assert as facts matters not in evidence or
excluded because inadmissible ….” Finally, the court instructed that “counsel
may not use arguments calculated to mislead the jury … or that appeal primarily
in communicating with witnesses
Reaching out to a witness in
advance of trial seems like a good way to prepare yourself for his or her
testimony. Much of the time, doing so is a good idea. But does that hold true
when you know that a particular witness is going to give testimony harmful to your client’s case?
As much as you may not want a witness to give testimony
harmful to your case, be mindful of Rule 5-310(A) of the California Rules of
Professional Conduct, which prohibits attorneys from advising or directly or
indirectly causing “a person to secrete himself or herself or to leave the
jurisdiction of a tribunal for the purpose of making that person unavailable as a witness
Exercise caution to avoid inadvertently or “indirectly”
hinting or suggesting to a witness that the witness make himself or herself
unavailable. For example, in Tuttle v. Combined Ins. Co. (E.D. Cal.
2004) 222 F.R.D. 424 (affirmed by Tuttle v. Combined Ins. Co. (9th Cir.
2007) 225 F.App’x 620), the court sanctioned a defendant and its counsel when
they contacted a witness who, at the plaintiff’s request, had traveled from out
of town to testify at trial. The defendant and its counsel picked the witness
up from her hotel, met with the witness for hours, told the witness that the
plaintiff’s conduct in procuring the witness’s cooperation to testify had been
“underhanded,” moved the witness to a different hotel, and made flight
arrangements for the witness when she decided to go home without testifying.
The court found by clear and convincing evidence that the corporation and its attorney had wrongfully influenced the witness in violation of Rule 5-310(A).
To avoid a Rule 5-310(A) violation, limit your
communications with witnesses – particularly those witnesses with testimony
harmful to your client – to the subject of the testimony rather than the fact
that the witness is testifying. Refrain from making comments that a witness could
construe as a suggestion that the witness not testify, and remind your client
to refrain from any such comments as well. If you’re afraid that a witness may
later inaccurately characterize your communications, bring another lawyer or a
paralegal with you so that the extra person will be able to provide sworn testimony to the court confirming that your communications were appropriate.
Compensating lay witnesses
While it is common knowledge that experts expect to be
compensated (sometimes quite handsomely) for providing their opinions at trial, is it proper to compensate a lay witness?
Rule 5-310(B) of the California Rules of Professional
Conduct address this issue. Pursuant to Rule 5-310(B), a lawyer may not
“[d]irectly or indirectly pay, offer to pay, or acquiesce in the payment of
compensation to a witness” where such payment is contingent on the content of
the testimony or the outcome of the case. However, a lawyer may compensate a
witness for expenses reasonably incurred and may pay reasonable compensation for the loss of time in attending or testifying. The language of the rule is not exclusive to experts.
To avoid violating Rule 5-310(B), don’t pay lay witnesses an
unreasonably high fee and only pay for (non-extravagant) travel or other
expenses actually incurred by the witness. For further guidance about
compensating lay witnesses, refer to California State Bar’s Formal Ethics
Opinion No. 1997-149, which includes a helpful discussion about compensating lay witnesses.
Perjured testimony by a non-client witness
Rule 5-200 of the California Rules of Professional Conduct
prohibits a lawyer from presenting perjured testimony to the court or the jury.
(See also Business and Professions Code section 6077). Therefore, if a lawyer has
actual knowledge that a non-client witness plans to give perjurious testimony,
the lawyer may not call that witness to testify. If a lawyer has actual
knowledge that a non-client witness has testified falsely, the lawyer who
called that witness must take steps to correct or reveal a non-client witness’s
perjury after-the-fact, the lawyer must do so (and may do so without fear of
violating any ethical obligation because the lawyer owes no duty of of confidentiality to the non-client witness).
What to do when you learn that your client plans to
commit (or has already committed) perjury is a subject worthy of an entire
article. In fact, the May 2014 Self-Study MCLE article for the California Bar
Journal, “Liar, liar, your client’s pants are on fire! – the ethical dilemma
of the lying client” by W. Kearse McGill, is devoted to just this question
and explains all of the various nuances associated with it. (See also California
’s Formal Ethics Opinion No. 1983-74).
Using social media to research potential jurors
Lawyers are still figuring out how they can (and cannot)
ethically use technology – and specifically social media – to benefit their
clients and gain an advantage during trial. One practice that may result in
ethics violations relates to lawyers using social media to research potential and sitting jurors.
California Rule of Professional Conduct rule 5-320 prohibits
a lawyer from directly or indirectly communicating with any member of the
venire from which the jury is to be selected or with any juror until the jury
has been discharged. It seems obvious to note that communicating with a juror
or potential juror through social media is improper. The less obvious issue
arises when a lawyer is not actually communicating with a juror or potential
juror, but is only viewing information that is publically available through
social media. Even more complicated is the scenario where a lawyer is using
social media to view what the lawyer believes to be publically available
information, but where, in fact, the attorney’s viewing results in the juror
receiving a communication from the social media site alerting him or her to the attorney’s viewing.
A brand new formal ethics opinion, ABA 466 , provides some
helpful guidance. The opinion concludes that sending a social media request to
a potential juror or a juror for access to the juror’s protected information
constitutes an improper communication. On the other hand, passive viewing of
public sites, without interaction with a potential juror or potential juror, is
proper. The opinion concludes that a lawyer’s viewing of a juror’s information
on a site that notifies the juror of that fact does not violate ABA model rules
of professional conduct. However, given that the California rules prohibit even
“indirect” communication between a lawyer and a juror, that part of the ABA opinion is likely not applicable in California.
To avoid any ethical issues, only research a juror or
potential juror online if you know that the means by which you are conducting
your research will not result in a notification to the juror. A general search
via a search engine would not be an ethical violation; a “friend request” or
“invitation to connect” would be improper. If you are unsure, refrain.
Improper contact with jurors post-trial
In addition to prohibiting communicating with jurors and
potential jurors, Rule 5-320 also provides that a lawyer may not make comments
to or ask questions of jurors after trial that would embarrass or harass the
jurors and thereby discourage future jury service, and must promptly reveal any
juror misconduct if the lawyer learns that misconduct has occurred.
Although seemingly straightforward, lawyers have encountered
difficulty with Rule 5-320, specifically with respect to the prohibition
against communications that would embarrass or harass former jurors. For
example, in Lind v. Medevac (1990) 219 Cal.App.3d 516, defense counsel
contacted jurors via letter after winning a defense verdict in a personal
injury action. The purpose of the attorney’s letter was to warn the jurors that
plaintiff’s counsel might send investigators to contact the jurors in an
attempt to “impeach the jury’s verdict.” The court found that the defense
attorney’s letter to the jurors constituted a violation of Rule 5-320 because
letters like the one at issue in that case “unprofessionally denigrate
anticipated and unproven conduct of opponents, and will only exacerbate the
reluctance of some persons to undertake jury service for fear their decisions
will be falsely attacked and overturned by reason of unprofessional and improper conduct of counsel
Generally, communicating with jurors after the conclusion of
trial exposes one to the risk that such communications with be perceived as a
violation of Rule 5-320. To avoid any potential Rule 5-320 issues, after asking
the jurors to talk with you following their verdict (a common and totally
proper practice), refrain from further communicating with former jurors for any reason unless doing so is absolutely necessary.
In conclusion, unethical conduct during trial can result in
sanctions, a contempt order, discipline, or even the reversal of a favorable
result. Revisit these trial-specific ethics rules from time to time to avoid
ethical missteps during trial. Being familiar with these rules will enable you
to best serve your clients by allowing you to focus on trial preparation.
Alison Buchanan is a shareholder at
Hoge, Fenton, Jones & Appel, where she focuses her practice on business
litigation, professional liability, and legal ethics. She is a member of the
State Bar's Standing Committee on Professional Responsibility and Conduct
(COPRAC) and a member of the San Francisco and Santa Clara County bar associations. She
teaches Professional Responsibility at Lincoln Law School in San Jose and
frequently lectures throughout the state on attorney ethics. The views
expressed herein are her own. This article appears in the California Bar Journal
as part of COPRAC’s outreach and educational efforts. For more information on
COPRAC, go to www.calbar.ca.gov/ethics.
 Of course, ABA 466 is based on the ABA Model Rules of Professional Conduct;
those rules are not controlling in California. To the extent ABA 466 is based
on ABA rules that are similar to the California Rules of Professional Conduct,
it may provide helpful guidance to California lawyers. To the extent that the
ABA rules differ from the California rules, the opinion – or part of it – may not