Samuel Stretton
Samuel Stretton ()

Lawyers should be careful when telling witnesses not to cooperate.

I have a criminal case coming up and the district attorney and detectives want to talk to some of the witnesses I listed in the alibi notice. Can I tell those witnesses not to speak to the district attorney?

Generally, a lawyer cannot advise witnesses not to speak to the opposing counsel. Of course, a witness never has to speak to opposing counsel or detectives. But, if the witness chooses on their own not to, that has to be a decision made solely by the witness or in consultation with their own attorney. And, normally an attorney representing a party who is calling a witness cannot tell a witness not to cooperate. That could be obstruction of justice. The applicable rule is found in Rule 3.4(d) of the Rules of Professional Conduct, titled “Fairness to Opposing Party and Counsel.” In essence, a lawyer is prohibited from requesting a person other than a client to refrain from voluntarily giving relevant information to another party. But, there are two exceptions.

The first exception is if the person is a relative, an employee or an agent of a client. Under those circumstances, a lawyer can tell the person—or ask the person—not to give relevant information. It must be noted that the person must currently be an employee or agent. It would appear that a former agent or former employee would be in a different position and the organization’s lawyer could not request that person not to give information. There is a second prong to the rule: The lawyer must also reasonably believe that the person’s interests will not be adversely affected by refraining from giving such information. Therefore, even if the person is a relative, employee or agent, the lawyer should not instruct them not to give information if that could affect the person’s interest. For instance, the person might be able to cooperate with the district attorney. By not giving information, that person may end up being charged. If the lawyer believes that could happen, then the lawyer should not tell the person—even though they are an employee or agent—not to cooperate. Comment 4 to Rule 3.4 notes the employee may identify their interest with those of the client.

It also should be noted if the person is represented by counsel, then the lawyer shouldn’t be speaking to them at all. Pennsylvania’s Rule 3.4 includes language that conduct cannot be prohibited by Rule 4.2, which prohibits communicating with someone represented by counsel on the subject matter. It is interesting to note that the American Bar Association Rules do not contain that addition. Also, Rule 4.3 prohibits giving advice to an unrepresented person except to advise them to seek counsel.

The reason why lawyers should not be telling one of their witnesses not to communicate is set forth in Comment 1 to Rule 3.4.

“The procedure of the adversary system contemplates that evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibition against destruction or concealment of evidence, improperly influence witnesses, obstructive tactics in discovery and the like.”

Therefore, every lawyer should be very careful when telling witnesses not to cooperate. It’s normally prohibited except for rare exceptions. A wise lawyer would tell the witness that they should seek independent counsel and also that they have a 
right to cooperate or a right not to, but the lawyer cannot advise the witnesses on 
those issues.

Your name can stay as long as you’re still active with the firm.

I am a practicing lawyer and I am going to be running for state legislature. If I win, may I still maintain a relationship with my law firm?

Yes. A state representative, state senator, county commissioner or county treasurer can still maintain a relationship with their law firm after being elected. Obviously, there are certain exceptions.

Clearly, the Rules of Professional Conduct have to be consulted with. But, you should also take a look at state ethics laws.

For the Attorney Disciplinary Rules, there is always the concern of conflict of interest. If a partner in a law firm is a state representative or state senator, then that law firm may not be in a position to bring a lawsuit against the commonwealth of Pennsylvania because there may be a conflict there. That would have to be decided on a case-by-case basis. But, the most important thing is the use of the now-elected person’s name in the letterhead. Rule of Professional Conduct 7.5(c) deals with that issue. Rule 7.5(c) notes as follows: “The name of a lawyer holding a public officer shall not be used in the name of a law firm, or in communication on his behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.”

Unfortunately, there is not a lot of guidance or ethics opinions on this particular issue. But, the language is fairly straightforward. If a lawyer is a partner, an associate or of counsel to a law firm and has become elected to public office, the lawyer still can maintain a relationship with the law firm and his name can be in the letterhead and on the door, etc. But, there are limitations. The lawyer has to be actively and regularly practicing with the firm. If the lawyer only appears at the Christmas party, the name has to be removed.

Therefore, if a lawyer is a state representative or a state senator and does that on a full-time basis, the lawyer can still be a member of the firm, but his name can’t be utilized or advertised. The lawyer has to be a working member of the firm. That doesn’t mean the lawyer has to be there 40, 50 or 60 hours a week. On the other hand, the lawyer has to practice regularly. Practicing regularly could mean handling clients with some regularity with the firm. One client a year or two clients a year might not be enough. The amount of time would be the determining factor.

There is a good reason for this restriction. Holding a public office is a very important responsibility. But, one can’t take advantage of the public position. If a public official also has a private law practice and works in the law practice and produces clients and handles cases, it is OK to be advertised as a member of the law firm. It’s another issue if the lawyer never does anything but allows their name or produces business as a lawyer. The public official/lawyer has to be present and work in the firm. An elected official is not supposed to use their public position to better themselves.

The Rules of Professional Conduct recognize the above and this prohibits a law firm from using the public official lawyer’s name unless the lawyer actually practices with the firm and is not just some absent member who might make a cameo appearance once or twice a year.

In conclusion, a lawyer who is elected to public office may still actually practice law with their law firm. If they wish to have their name in the advertisement and letterhead, they can do so as long as they are actually and regularly involved with the firm. To do otherwise would allow the lawyer to take advantage of their public position for their own benefit. •