Samuel Stretton
Samuel Stretton ()

A line must be drawn regarding trial tactics.

Is it ethical to be very nasty to a witness or victim at a preliminary hearing for the purpose of having the victim overreact to the lawyer at trial when the lawyer is not treating him or her in the same mean way?

The question is an interesting one since it does go into tactics. Presently, this question would most likely not arise, because at most preliminary hearings, the judge is not going to allow a lawyer to be mean or treat badly any witness.

But a very famous trial lawyer did use this tactic to considerable success in sexual assault and rape cases. This lawyer has now passed away after a distinguished career. But in teaching and speaking to lawyers about how to try these kind of cases, the lawyer used to note at times he would try to discomfort, if possible, a rape or sexual assault victim during the preliminary hearing by being very curt and downright mean. At trial, the lawyer would then have an entirely different approach and would be very gentle and nice. But the victim would be angry at the lawyer and snap at him and overreact. The jury wouldn’t have known how the victim had been treated at the preliminary hearing and, at times, that helped to raise reasonable doubt in the jury’s mind as to the accuracy of the victim’s testimony.

Assuming a modern judge would allow a lawyer to do that, it appears it is probably not a valid trial tactic. There is nothing wrong with trial posturing. A lawyer who is examining a witness certainly can engage in a very thorough and, at times, rough cross-examination. The lawyer’s approach could make it seem like the victim is not telling the truth. That is acceptable cross-examination. But if the posturing becomes mean-spirited or downright nasty and almost a belittling of a witness or victim, that is unacceptable behavior by a lawyer, even though the lawyer might have a valid tactical or strategic reason for doing so.

Under Rule of Professional Conduct 3.5(d), a lawyer is not to engage in conduct intended to disrupt a tribunal. In the same rule, under Subsection (a), a lawyer can’t seek to influence a jury by means prohibited by law. Comment 1 to Rule 3.5 notes “many forms of improper influence upon a tribunal are prescribed by criminal law.”

Further, under Rule 3.4, titled “Fairness to Opposing Party and Counsel,” lawyers cannot lawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or falsify evidence or counsel or assist a witness to testify falsely.

Although Rule 3.4 does not have a specific prohibition for malicious conduct by counsel in cross-examination of a victim, one could argue that acting in an extremely nasty way toward a victim for the purpose of having the victim overreact to the lawyer in front of the jury at trial might be a means to falsify evidence or a means to mislead the jury. Further, Rule 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, as well as conduct that is prejudicial to the administration of justice. Clearly, the conduct described as a tactic could well be a form of dishonesty or misrepresentation and could well be conduct prejudicial to the administration of justice.

Where does one draw the line in trial tactics? There is nothing wrong with a good cross-examination. There is nothing wrong with a lawyer posturing before the jury or fact-finder that the witness isn’t telling the truth. But there is something insidious and dishonest about intentionally trying to create a false impression with a witness for the sole purpose of having the witness overreact to the lawyer at trial. The approach obviously is innovative by a zealous lawyer, but even zealousness has its limitations.

In reality, what the lawyer is talking about is a form of intimidation of the witness in the formal structure of a preliminary hearing. The hope of the lawyer is the witness will then hate the lawyer and react bitterly and angrily to the lawyer during the trial when the lawyer is sitting there smiling and acting professionally. But this is really a form of dishonesty and it appears it should not be considered a valid trial tactic.

Obviously, reasonable minds could disagree on this interpretation. But trials are the art of persuasion. Persuasion is done through extremely effective examination of witnesses and through excellent arguments to the jury. There is a lot of room for posturing and advocacy. But there is no room for misleading a witness, either directly or through playing a game to get the witness upset or angry at the lawyer.

Therefore, it would appear that the answer to the question would be that the conduct should not be approved and could violate the Rules of Professional Conduct. A far better approach would be a good and vigorous cross-examination of the victim without any nastiness.

Holding a former client’s files hostage could result in disciplinary action.

I am representing a client in a personal injury case and the client has unfairly discharged me. I suspect another lawyer has offered the client a more reduced fee arrangement, but I can’t prove it. I have a fair amount of quantum meruit time and costs. I am not going to turn over the file to the new lawyer until the cost and fees have been paid. Is that ethical?

Withholding files after a lawyer has been discharged is unfortunately a fairly common practice. Lawyers justify the withholding by citing retaining or charging liens. To some extent, there is some justification. But under Rule 1.16(d), the rule involving withdrawal, a lawyer may maintain papers relating to the client to the extent permitted by other law. Under Comment 9, the lawyer may retain papers as security for a fee only to the extent permitted by law.

But withholding papers in the file from a client as hostage for the payment of fees and costs can place the lawyer in a difficult situation. Pursuant to ethics opinions and also disciplinary prosecutions, a lawyer, although initially entitled to withhold the file or documents, cannot do so if, by withholding, the client is prejudiced. This is particularly so if there are investigative reports and witnesses’ names that are in the file that wouldn’t be known. Perhaps it would not be the case if the essence of the file was just the pleadings, which the client could get by going to the courthouse or going online and printing them out. But to continue to hold papers if there is prejudice could result in disciplinary action against the lawyer.

Further, many times a lawyer has a quantum meruit claim. To succeed in a quantum meruit claim, a lawyer has to show he or she brought value to the case. To some extent, withholding the file from the new lawyer can be self-defeating. If the new lawyer doesn’t get the file and then recreates it on his or her own and proceeds forward, it is very difficult for the first lawyer to argue he or she is entitled to quantum meruit if the new lawyer gets a good result without the benefit of the file.

The better practice is not to hold the file hostage. Immediately turn over the file. If the lawyer hasn’t been paid, then the client has to pay the copying costs. If the lawyer has been paid, then the lawyer has to pay the copying costs. A wise lawyer will keep a copy of the file.

Once turned over, the lawyer can then submit his or her claim for costs and quantum meruit to the new lawyer. Hopefully, that lawyer will act in a professional matter and agree to protect fees and costs out of any settlement or judgment. If not, the former lawyer has the right to file a suit against the client to protect the lawyer’s interest in fees and costs.

Obviously, it is frustrating when a lawyer is unjustly discharged. But the lawyer must always act as the professional. The lawyer does not want to do anything to hurt a client. Under the circumstances here, where the lawyer was wrongfully discharged, the best practice is for the lawyer to make the file available to the new lawyer and cooperate. Failure to make the file available and prejudicing the client could result in disciplinary action or reduce the lawyer’s claim to be reimbursed for fees and costs. 

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.