Counsel Enjoined from Contacting Non-Party Witnesses
Sara E. Costello, Litigation News Associate Editor – January 6, 2012

While it is permissible for a lawyer to contact non-party witnesses during the course of investigating her client’s case, lawyers must let the witnesses make their own decisions about talking to opposing counsel. A recent case from a Hamilton County, Tennessee Circuit Court underscores this point.

The Tennessee court held that lawyers may not tell potential witnesses to avoid speaking with or providing information to opposing counsel. Though the Abbott v. A.W. Chesterton Company court labeled such tactics “unfair and improper,” it did not automatically exclude the affected witnesses from testifying.

Counsel’s Letter to Non-Party Witnesses
After being diagnosed with mesothelioma, Carl Abbott sued numerous manufacturers and suppliers of asbestos–containing products. His counsel contacted 16 of Abbott’s former co-workers, by letter, and recommended that they “firmly refuse to speak or respond” to defense counsel. “This will minimize your time involvement and will help make sure that the testimony you give is the truth,” the letter stated. “You are not doing yourself” or the plaintiff “any favors” if you do you talk with defense counsel, the letter warned. “Knowing (like us) that you want to tell the truth,” the letter advised potential witnesses not to sign “any affidavits or other documentation” they might receive from defense counsel without first allowing plaintiff’s counsel to review them.

Noting that “the letter implied that defense counsel would attempt to mislead and distort the witness’s statements,” the court found the letter “improper.” Rule 3.4(f) of the Tennessee Rules of Professional Conduct, which governs fairness to the opposing party and counsel, “expressly prohibits this type of communication,” the court stated. Like Model Rule of Professional Conduct 3.4(f), this rule prohibits lawyers from requesting that witnesses “refrain from voluntarily giving relevant information to another party” with limited exceptions. By discouraging potential witnesses from speaking with opposing counsel and signing any documents related to the case, the letter violated Rule 3.4(f).

The Rules of Professional Conduct have the “force and effect of law,” observed the court. “[O]ur judicial system is one based upon adversarial interests;” however, it “is not a ‘free-for-all’ atmosphere, but rather a field of fair competition in which both parties are required to abide by certain rules.”

No Automatic Exclusion of Witnesses
The defendants moved to enjoin further use of the letter, and “requested that a blanket prohibition against testifying be placed on any [of the sixteen] witness who received” it. Plaintiff’s counsel said that he would not send out the letter again, but he urged the court to “determine whether there was any actual harm” before preventing witnesses from testifying.

While the court enjoined further use of the letter, the court declined to automatically exclude all witnesses who received the letter. Instead, “any exclusion of witnesses will be done on a witness-by witness basis” prior to trial. The court noted, however, that “a strongly-worded curative jury instruction” also may be appropriate.

In crafting the remedy, the court analyzed how other “jurisdictions have addressed the issue of attempts of counsel to dissuade a non-party witness from speaking with opposing counsel.” In Kensington Intern. Ltd. v. Republic of Congo, counsel for the Republic of Congo contacted a non-party witness several times in an attempt to convince him not to attend a post-judgment deposition. The Kensington court found that counsel acted in bad faith and imposed $165,000 in sanctions.

“In this case, the actions of plaintiff’s counsel are not as egregious as those in Kensington,” the court concluded. The court stressed that plaintiff’s counsel “expressed regret” and “a willingness to work with the trial court and opposing counsel to mitigate any prejudicial effect the letter may have had.” The court also emphasized “that of the sixteen witnesses to receive the letter, only two have refused to speak to opposing counsel.”

Contacting Potential Non-Party Witnesses
The letter in this case is “over-the-top surprising,” says Joan K. Archer, Kansas City, MO, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. There is “nothing wrong” with contacting non-party witnesses if you “make them feel free to make the choice” about whether or not to speak with opposing counsel.

It is appropriate to advise “a non-party witness to be cautious” about understanding who counsel represents, explains Damian E. Thomas, Miami, cochair of the Section of Litigation’s Solo and Small Firm Committee. One cannot, however, “suggest the witness not talk” with opposing counsel.

The implications of counsel’s conduct could persist, notes Archer. If the jury learns about the letter “it could be prejudicial to the plaintiff.” She believes that jurors could view the letter as an attempt to gain an unfair advantage. Still, “defense counsel should be cautious about pressing the issue” during trial because “it’s really a side issue” that might annoy the jury.

The Court’s Remedy
“Enjoining the attorney” from sending out the letter is the correct remedy, Thomas says. “I see no reason why the witnesses should also be excluded.” In this situation, however, Thomas would also seek “attorneys’ fees or monetary sanctions.”

Keywords: witnesses, ethics, pre-trial practice, asbestos litigation

 
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