Ian Pinta offers analysis of ABA ethics opinion on witness preparation
The rise of virtual legal proceedings has made more urgent the need for delineating what is permissible for witness preparation, according to a recent ethics opinion of the American Bar Association.
Lawyers have an important role in getting witnesses ready to testify, but remote depositions and hearings create the potential for surreptitious “coaching” of testimony not permitted under professional rules of conduct, according to the ABA Standing Committee on Ethics & Professional Responsibility.
In a news article published by Massachusetts Lawyers Weekly, Ian Pinta, a partner at the firm, said the ABA ethics opinion reaffirms the dividing line between permissible witness preparation and impermissible witness coaching.
“What the ABA is saying is what practitioners have been doing for years pre-COVID [at depositions and hearings], they should do post-COVID at remote depositions and hearings,” Mr. Pinta said. “Lawyers should act with common sense. The same rules apply to remote proceedings. You shouldn’t coach a witness via Zoom just like you shouldn’t coach a witness in someone’s office. I don’t think you need a rule to tell someone that you shouldn’t direct a witness what to say via a chatroom.”
Mr. Pinta also offered practice tips, such as always asking at the outset of a remote deposition where the witness is located and if anybody else is physically present with the witness.
He said that if he ever suspected a witness was being coached, he’d likely suspend the deposition, demand that it take place in a live setting, and potentially seek court intervention.