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MCLE Self-Study JUNE 2014 | Earn one hour of MCLE Credit in Legal Ethics
Current MCLE Article
Avoiding and addressing unexpected ethics issues at trial
Archived MCLE Articles
By ALISON P. BUCHANAN
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Complete Unfinished Test Any trial lawyer knows that a big part of trial work is expecting the unexpected. No matter how
much you plan and prepare, there is no way to be ready for every possible scenario that may
FAQs
come up during trial. This article will help you avoid and navigate unexpected ethics issues
that arise during trial. Use these tips so that you can swiftly address (or dodge altogether)
CLE Calendar those unplanned ethics scenarios and get back to preparing for that important cross-
examination.
Attorney Discipline
Maintaining your ethics while presenting your case
You Need To Know
Buchanan
Trials Digest Rule 5-200 of the California Rules of Professional Conduct governs trial conduct. In addition
to prohibiting a lawyer from presenting false evidence, it also prohibits lawyers from engaging in other unethical
Public Comment conduct during trial. For example, Rule 5-200 prohibits lawyers from asserting personal knowledge of the facts at
issue, except when testifying under oath.
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Case law addressing unethical trial conduct is sparse, and sometimes it seems that evaluating whether certain
Marketplace conduct during trial is ethical is a purely subjective matter. However, there are some notable cases that help
define certain boundaries of ethical behavior in trial.
Archived Issues
Hawk v. Superior Court (1974) 42 Cal.App.3d 108, provides a laundry list of what not to do in trying a case. The
court affirmed a contempt finding against an attorney who, throughout trial, advised his client to disobey a court
order, engaged in misconduct during voir dire, referred to his client by name and referenced his personal
friendship with the client, humiliated a witness, repeated questions even after the court sustained an objection,
improperly impeached a witness, displayed an offensive personality, failed to yield respectfully to the and told
the jury that even the prosecutor had reasonable doubt as to the
defendants guilt.

Another case, People v. Love (1961) 56 Cal.2d 720, clarifies the boundaries
of behavior in closing argument. There, the California Supreme Court
reversed and remanded a judgment imposing the death penalty and order
denying a new trial based on the prosecutors improper closing argument. June 2014
The court reminded that an attorneys closing argument to the jury must be
based solely upon those matters of fact of which evidence has already been SAMPLE TEST QUESTIONS
introduced or of which no evidence need ever be introduced because of
their notoriety as judicially noticed facts. The court noted that although an BELOW ARE SAMPLE QUESTIONS FROM THIS
attorney may argue matters not in evidence that are common knowledge, MONTH'S MCLE SELF-ASSESSMENT TEST.
counsel may not, however, under the guise of argument, assert as facts
matters not in evidence or excluded because inadmissible . Finally, the 1. It is improper for a lawyer to conduct an
court instructed that counsel may not use arguments calculated to mislead Internet search regarding potential jurors via
the jury or that appeal primarily a search engine.

Use caution in communicating with witnesses True False

Reaching out to a witness in advance of trial seems like a good way to 2. A lawyer may send a social media friend
prepare yourself for his or her testimony. Much of the time, doing so is a request or invitation to connect to a juror
good idea. But does that hold true when you know that a particular witness during trial as long as the lawyer doesnt
is going to give testimony harmful to your clients case? engage in any direct back-and-forth
communications with the juror until after the
As much as you may not want a witness to give testimony harmful to your trial has concluded.
case, be mindful of Rule 5-310(A) of the California Rules of Professional
Conduct, which prohibits attorneys from advising or directly or indirectly True False
causing a person to secrete himself or herself or to leave the jurisdiction of
a tribunal for the purpose of making that person unavailable as a witness 3. Although a lawyer may not initiate
communications with a juror via social
media, if the juror initiates the
Exercise caution to avoid inadvertently or indirectly hinting or suggesting communication, the lawyer may engage with
to a witness that the witness make himself or herself unavailable. For the juror.
example, in Tuttle v. Combined Ins. Co. (E.D. Cal. 2004) 222 F.R.D. 424
(affirmed by Tuttle v. Combined Ins. Co. (9th Cir. 2007) 225 F.Appx 620), True False
the court sanctioned a defendant and its counsel when they contacted a
witness who, at the plaintiffs request, had traveled from out of town to
testify at trial. The defendant and its counsel picked the witness up from her To complete the test, you must pay a $25 fee
hotel, met with the witness for hours, told the witness that the plaintiffs online. Click the button below and follow the
conduct in procuring the witnesss cooperation to testify had been onscreen instructions.
underhanded, moved the witness to a different hotel, and made flight
arrangements for the witness when she decided to go home without
testifying. The court found by clear and convincing evidence that the
corporation and its attorney had wrongfully influenced the witness in
violation of Rule 5-310(A).

To avoid a Rule 5-310(A) violation, limit your communications with witnesses particularly those witnesses with testimony harmful to your
client to the subject of the testimony rather than the fact that the witness is testifying. Refrain from making comments that a witness
could construe as a suggestion that the witness not testify, and remind your client to refrain from any such comments as well. If youre
afraid that a witness may later inaccurately characterize your communications, bring another lawyer or a paralegal with you so that the
extra person will be able to provide sworn testimony to the court confirming that your communications were appropriate.

Compensating lay witnesses

While it is common knowledge that experts expect to be compensated (sometimes quite handsomely) for providing their opinions at trial,
is it proper to compensate a lay witness?

Rule 5-310(B) of the California Rules of Professional Conduct address this issue. Pursuant to Rule 5-310(B), a lawyer may not [d]irectly
or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness where such payment is contingent on the
content of the testimony or the outcome of the case. However, a lawyer may compensate a witness for expenses reasonably incurred and
may pay reasonable compensation for the loss of time in attending or testifying. The language of the rule is not exclusive to experts.

To avoid violating Rule 5-310(B), dont pay lay witnesses an unreasonably high fee and only pay for (non-extravagant) travel or other
expenses actually incurred by the witness. For further guidance about compensating lay witnesses, refer to California State Bars Formal
Ethics Opinion No. 1997-149, which includes a helpful discussion about compensating lay witnesses.

Perjured testimony by a non-client witness

Rule 5-200 of the California Rules of Professional Conduct prohibits a lawyer from presenting perjured testimony to the court or the jury.
(See also Business and Professions Code section 6077). Therefore, if a lawyer has actual knowledge that a non-client witness plans to
give perjurious testimony, the lawyer may not call that witness to testify. If a lawyer has actual knowledge that a non-client witness has
testified falsely, the lawyer who called that witness must take steps to correct or reveal a non-client witnesss perjury after-the-fact, the
lawyer must do so (and may do so without fear of violating any ethical obligation because the lawyer owes no duty of of confidentiality to
the non-client witness).

What to do when you learn that your client plans to commit (or has already committed) perjury is a subject worthy of an entire article. In
fact, the May 2014 Self-Study MCLE article for the California Bar Journal, Liar, liar, your clients pants are on fire! the ethical dilemma
of the lying client by W. Kearse McGill, is devoted to just this question and explains all of the various nuances associated with it. (See
also California s Formal Ethics Opinion No. 1983-74).

Using social media to research potential jurors

Lawyers are still figuring out how they can (and cannot) ethically use technology and specifically social media to benefit their clients
and gain an advantage during trial. One practice that may result in ethics violations relates to lawyers using social media to research
potential and sitting jurors.

California Rule of Professional Conduct rule 5-320 prohibits a lawyer from directly or indirectly communicating with any member of the
venire from which the jury is to be selected or with any juror until the jury has been discharged. It seems obvious to note that
communicating with a juror or potential juror through social media is improper. The less obvious issue arises when a lawyer is not actually
communicating with a juror or potential juror, but is only viewing information that is publically available through social media. Even more
complicated is the scenario where a lawyer is using social media to view what the lawyer believes to be publically available information,
but where, in fact, the attorneys viewing results in the juror receiving a communication from the social media site alerting him or her to
the attorneys viewing.

A brand new formal ethics opinion, ABA 466 [1], provides some helpful guidance. The opinion concludes that sending a social media
request to a potential juror or a juror for access to the jurors protected information constitutes an improper communication. On the other
hand, passive viewing of public sites, without interaction with a potential juror or potential juror, is proper. The opinion concludes that a
lawyers viewing of a jurors information on a site that notifies the juror of that fact does not violate ABA model rules of professional
conduct. However, given that the California rules prohibit even indirect communication between a lawyer and a juror, that part of the
ABA opinion is likely not applicable in California.

To avoid any ethical issues, only research a juror or potential juror online if you know that the means by which you are conducting your
research will not result in a notification to the juror. A general search via a search engine would not be an ethical violation; a friend
request or invitation to connect would be improper. If you are unsure, refrain.

Improper contact with jurors post-trial

In addition to prohibiting communicating with jurors and potential jurors, Rule 5-320 also provides that a lawyer may not make comments
to or ask questions of jurors after trial that would embarrass or harass the jurors and thereby discourage future jury service, and must
promptly reveal any juror misconduct if the lawyer learns that misconduct has occurred.

Although seemingly straightforward, lawyers have encountered difficulty with Rule 5-320, specifically with respect to the prohibition
against communications that would embarrass or harass former jurors. For example, in Lind v. Medevac (1990) 219 Cal.App.3d 516,
defense counsel contacted jurors via letter after winning a defense verdict in a personal injury action. The purpose of the attorneys letter
was to warn the jurors that plaintiffs counsel might send investigators to contact the jurors in an attempt to impeach the jurys verdict.
The court found that the defense attorneys letter to the jurors constituted a violation of Rule 5-320 because letters like the one at issue in
that case unprofessionally denigrate anticipated and unproven conduct of opponents, and will only exacerbate the reluctance of some
persons to undertake jury service for fear their decisions will be falsely attacked and overturned by reason of unprofessional and improper
conduct of counsel
 Generally, communicating with jurors after the conclusion of trial exposes one to the risk that such communications with be perceived as
a violation of Rule 5-320. To avoid any potential Rule 5-320 issues, after asking the jurors to talk with you following their verdict (a
common and totally proper practice), refrain from further communicating with former jurors for any reason unless doing so is absolutely
necessary.

In conclusion, unethical conduct during trial can result in sanctions, a contempt order, discipline, or even the reversal of a favorable result.
Revisit these trial-specific ethics rules from time to time to avoid ethical missteps during trial. Being familiar with these rules will enable
you to best serve your clients by allowing you to focus on trial preparation.

Alison Buchanan is a shareholder at Hoge, Fenton, Jones & Appel, where she focuses her practice on business litigation, professional
liability, and legal ethics. She is a member of the State Bar's Standing Committee on Professional Responsibility and Conduct (COPRAC)
and a member of the San Francisco and Santa Clara County bar associations. She teaches Professional Responsibility at Lincoln Law
School in San Jose and frequently lectures throughout the state on attorney ethics. The views expressed herein are her own. This article
appears in the California Bar Journal as part of COPRACs outreach and educational efforts. For more information on COPRAC, go to
www.calbar.ca.gov/ethics.

[1] Of course, ABA 466 is based on the ABA Model Rules of Professional Conduct; those rules are not controlling in California. To the
extent ABA 466 is based on ABA rules that are similar to the California Rules of Professional Conduct, it may provide helpful guidance to
California lawyers. To the extent that the ABA rules differ from the California rules, the opinion or part of it may not be applicable.

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