I offer this short primer on the ethics of preparing a witness as a teaser trailer to this year’s annual Legal Ethics Lessons Learned from Fictional Attorneys CLE, to be presented by the Ethics Committee of The Bar Association of San Francisco on May 29, 2024.
In the webinar, Immediate Past Chair Carl Chamberlin and I usually set up a scene from a film or television show in which the fictional attorney faced a thorny, or not so thorny, legal ethics issue. Then we unpack the primary California Rules of Professional Conduct (CRPC) that are implicated and discuss how the attorney got it wrong (or right).
In our 2023 “Prequel” edition, we highlighted a well-known scene from the 1959 classic Anatomy of a Murder. Criminal defense attorney Paul Biegler (played by Jimmy Stewart) represented Lt. Frederick Manion, who was charged with first degree murder of a man who allegedly raped Manion’s wife. There is no doubt that Manion shot the victim. During a brainstorming lunch, Biegler’s co-counsel suggested that they coach Manion to provide a defense.
In the next scene, Biegler explained to Manion the four ways that he can defend murder: “Number one, it wasn’t murder – it was suicide or accidental. Number two, you didn’t do it. Number three, you were legally justified – like the protection of your home or self-defense. Number four, the killing was excusable.”
Manion then asked, “Where do I fit in this rosy picture?” Biegler explained that Manion’s situation did not fit in the first three. So far so good, from an ethics standpoint. Biegler explained the situation to the client in a reasonably understandable way and why, for example, the defense of others justification was not applicable – because Manion didn’t catch the victim in the act and the murder was premeditated.
Manion showed his frustration with Biegler not offering a solution, and stated “So what are you telling me?” Biegler replied, “I am not telling you anything, I just want you to understand the letter of the law. . . Now you’re really bright lieutenant. Now let’s see how really bright you can be. . . What’s your legal excuse for killing Barney Quill?”
Manion replied – “I must have been mad.” Biegler shook his head, and stated, “Bad temper is no excuse.” Manion pivoted, “I mean I must have been crazy. Am I getting warmer?” As he walked out, Biegler stated, “See if you can remember just how crazy you were.”
An attorney may generally inform the client of the law and the legal significance of the facts. But Biegler’s lecture outlined the legal defenses to murder in a way that arguably suggested facts his client should fabricate to support a defense. And the facial expressions Biegler made along the way were even more suggestive. Did he go too far?
As a threshold matter, CRPC 1.2.1 (Advising or Assisting the Violation of Law) states: “(a) A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.” Here, Biegler arguably counseled the client to “remember” facts that were not true to fit the only potentially available defense to murder. Did Biegler “know” the defense was untrue? CRPC 1.2.1(b) does allow a lawyer to “discuss the legal consequences of any proposed course of conduct with a client.” But this was not that. Manion’s conduct (shooting the victim) already occurred.
Next, CRPC 3.3 prohibits a lawyer from offering evidence that the lawyer knows to be false. Here, Biegler arguably knew that Manion’s “recollection” would be tainted because of Biegler’s coaching. For this, take a look at California Formal Ethics Opinion 2019-200 on Witness Perjury.
Finally, in August 2023, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 508 on the Ethics of Witness Preparation. The Opinion’s Digest noted, “Counseling a witness to give false testimony or assisting a witness in offering false testimony, for example, is a violation of at least Model Rule 3.4(b).” CRPC 3.4(c) is our equivalent of that rule: “A lawyer shall not . . . falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.”
Read Formal Opinion 508 for a short list of dos and don’ts for ethically preparing witnesses. And then watch Anatomy of a Murder to spot other instances of lawyers behaving unethically. Better yet, for a more obvious example of coaching a witness, watch the “Forget-Me-Now” episode of Arrested Development, in which Scott Baio’s Bob Loblaw takes things a step further than Mr. Stewart.
Joanna L. Storey Mishler is Senior Counsel at Klinedinst PC. She focuses her practice on professional liability, risk management, and legal ethics for lawyers and law firms. Ms. Mishler works with clients to proactively mitigate the risk of potential loss and find creative solutions when thorny problems arise. She also advises clients about cybersecurity-related laws and keeping client information secure. Ms. Mishler is the Chair of the Legal Ethics Committee of the Bar Association of San Francisco.