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Talking legal ethics over dinner

The atmosphere of legal practice is rightfully infused with ethical rules and aspirations. The Rules of Professional Conduct for Maryland lawyers are contained in Chapter 300 of the Maryland Rules. Some rules are broader than one might think and require affirmative action by attorneys, while others are amplified by case law.

Let us consider the following dinner conversations (recorded with permission):

At a recent bar association dinner, Donald Johnson, Esq., mentioned to Jane Richardson, a law professor, that he received in discovery a document that opposing counsel would regret. “It appears to have been protected by work product, and attorney-client privilege,” Donald explained. “When I cross-examine counsel’s client at tomorrow’s deposition, counsel will regret the oversight.”

“No so fast, Donald.” the professor said. “Are you familiar with Md. Ethical Rule 19-304.4: Respect for Rights of Third Parties?”

“Not really,” Donald replied.

“You may want to think twice,” she said. “Part (b) of the rule provides an attorney who receives a document relating to the representation of the lawyer’s client, and knows or reasonably should know that the document was inadvertently sent, shall promptly notify the sender.”

“Donald,” she continued, “you also should know that Md. Civil Procedure Rule 2-402 (e) (2) provides that if a party receives a document that the party knows or reasonably should know was inadvertently sent, the party must promptly notify the sender. Section (4) states inadvertent disclosure does not operate as a waiver of privileged information, if the holder of the privilege made the disclosure inadvertently, took reasonable steps to prevent disclosure, and took reasonable prompt measures to rectify the error once the holder knew or should have known of the disclosure. (See also Rule 26(b)(5)(B) FRCP).

“That rule also provides that if the opposing party responds to the notice by notifying the lawyer who received the document that it is privileged, and was inadvertently produced, the lawyer who received the document must, among other things, ‘return, sequester, or destroy the specified information.’”

“I guess I should read the rules,” said Donald.

“Don’t read them…Study them, and case law,” urged the professor.

Before dessert was served, Donald raised another matter. “I plan to meet with a witness in another case,” he began. “I plan to advise him, when asked about some damaging facts, to respond, ‘I don’t remember.’ What do you think?”

“Donald, is this a joke?” exclaimed the professor. “You better read Md. Rule 19-303.4: Fairness to Opposing Counsel and Attorney, which prohibits an attorney from falsifying evidence, or counseling or assisting a witness to testify falsely.

“If you suggest — or even permit — your client, or any witness, to respond, ‘I don’t remember,’ when they do, you are committing an ethical violation. Read also Md. Rule 19-301.1: Competence. No competent lawyer would even consider advising a witness to testify falsely, which is exactly what you are planning. See also Md. Rule 19-303.3: Candor Toward the Tribunal, and read “Be Aware of Ethical Witness Preparation Rules, N.Y.L.J., May 25, 2000.”

Before leaving, Donald asked the professor to review an affidavit he prepared for a witness to sign for submission in evidence.

“Did you talk with the witness about signing the affidavit?” she asked.

“Not yet,”  he said.

“What am I to do with you, Donald?” exclaimed the professor. “Lawyers have ethical duties when interviewing and preparing witnesses. Several rules may be relevant, including Model Rule 19-303.3 (Candor Toward the Tribunal); Rule  19-303.4 (Fairness to Opposing Party and Attorney); and Rule 19-304.4 (Respect for Rights of Third Persons). I suggest you refrain from showing the affidavit to the witness until you are sure the facts in the proposed affidavit are true. Discuss the case with the witness. Ask questions about the matter. Request the witness to sign the affidavit only after the witness verifies the facts are accurate.”

“Donald, if you show the affidavit to the witness before an interview, you may be giving the impression of injecting facts that are not true. Moreover, you could appear to be telling the witness what to say, rather than asking the witness what she actually knows and remembers. But when you are positive the facts are true, a pre-scripted affidavit may be proper.” (See, Restatement (Third) of The Law Governing Lawyers, §118, Comment (b)).

“And regarding pretrial witness preparation, Donald, the Court of Appeals of Maryland stated, ‘…[I]n the interviews with and examination of witnesses, out of court, and before the trial of the case, the …, {counsel} must exercise…caution… to extract and not to inject information, and by all means to resist the temptation to influence or bias the testimony of the witnesses.’” (State v. Earp, 319 Md. 156, 170 (1990))

“Thank you, professor,” said Donald, “I now appreciate the importance of knowing both the ethical rules and the case law that govern the conduct of lawyers.”

“Good luck, Donald,” said the professor. “See you next month.”

Paul Mark Sandler, trial lawyer and author, can be reached at