It’s January and it’s time to put away the holiday decorations and get back to work. January brings frigid temperatures, snow and icy roads. In other words, it is a perfect time for you to knock on doors and conduct a field investigation. But before you put your coat on and head out to find that needle-in-a-haystack witness who will save your case, remember that there are ethical rules regarding how you deal with witnesses. Here are three things to know about interviewing witnesses.
1. You are not James Bond; make certain the witness understands your role
While it would be fun to play the role of a secret agent and go undercover, the Indiana Rules of Professional Conduct kind of frown on that. Rule 4.3 states that “[i]n dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.” If the witness appears to misunderstand your role, Rule 4.3 requires that you “correct the misunderstanding.” Therefore, you need to make sure that the witness understands that you’re acting in your role as an attorney and that you are not the witness’s lawyer.
What if the witness appears nervous and asks you, “What should I do?” If there is a reasonable possibility that the interests of the witness may be in conflict with the interests of your client, Rule 4.3 only permits you to advise the witness to secure counsel. Again, the fact that you are an attorney working on behalf of a client must be explicit.
2. If the witness is represented, the witness can’t grant permission to the interview
Most attorneys know that, under Rule 4.2 of the Indiana Rules of Professional Conduct, “a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.” However, there seems to be some confusion as to whether the represented witness can unilaterally agree to an interview.
So, let’s say you are standing on a porch in the midst of a frozen Indiana day and the witness you have been looking for says, “It’s my life! I don’t want my lawyer. I want to help you. Let’s talk now!” What do you do? You have a client to represent, so obviously, you will want to get this helpful information while the getting is good. And besides, the witness “waived” his right to counsel. That sort of thing happens all the time during police interviews in jail cells. It’s the witness’s call. Right?
Well, actually, it is not the witness’s call. Rule 4.2 “applies even though the represented person initiates or consents to the communication.” Ind. Prof. Cond. R. 4.2 cmt. 3. So, while you stand shivering on the porch with the eager witness, you better pick up the phone and contact the witness’s lawyer before your proceed any further.
3. Protect yourself
Witnesses can do crazy things. Since the beginning of the legal profession, witnesses have been known to tell the truth, tell lies, tell inconsistent stories, change their entire stories, change part of their stories, become confused, and become intimidated for good and no good reasons. If the witness says something you like and you want to present the testimony at trial, your opposing counsel will want to test that witness. Therefore, what you said or didn’t say to that witness may become fair game.
You went to law school to be the lawyer on a case, not to be part of the case. So protect yourself.
When you go to meet a witness, bring another witness. This ensures that there will be evidence of what took place at the interview. If no one can attend the interview with you, give consideration to whether you want to record the conversation as well. Present your business card to the witness so there is no confusion that you are an attorney. If you like, write on the card who you represent. And finally, while you will always be looking for the truth, it will not hurt for you to explicitly ask the witness to tell you the truth. I have seen lawyers rehabilitate witnesses when it was recounted that “the lawyer asked me to tell the truth.”•
James J. Bell is an attorney with Bingham Greenebaum Doll LLP. He assists lawyers and judges with professional liability and legal ethics issues. He also practices in criminal defense and is a regular speaker on criminal defense and ethics topics. Bell can be reached at firstname.lastname@example.org. The opinions expressed are those of the author.