Cal. Litig. 2016, Volume 29, Number 2

Trial Ethics: Witnesses

By Wendy Wen Yun Chang

Witnesses. At trial, they literally can make or break your case. Every experienced trial lawyer knows that even the best groundwork cannot fully eliminate uncertainties of how a witness ultimately performs or how a trier of fact responds. Against that backdrop there are also ethical rules that govern how attorneys interact with witnesses. Violating these rules can inject further ambiguity into an already inexact process, giving rise to the potential for unexpected results, including the loss of a favorable decision, sanctions, disciplinary actions and civil liability. You need to be prepared and should familiarize yourself with the rules so that you do not find yourself in an unnecessary quandary.

We start with basic premises: An attorney must act zealously to protect the client’s interests but may only do so within the boundaries of the law. (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 126.) As officers of the court, attorneys are duty-bound to act ethically. (See Styles v. Mumbert (2008) 164 Cal.App.4th 1163, 1169.) The public’s regard for the legal profession depends in large part on the public’s trust in the integrity of attorneys and the legal system itself. (Ibid.) Thus, an attorney must, at all times, employ only those means that are consistent with the truth. (Bus. & Prof. Code, § 6068, subd. (d).) It is the duty of an attorney to maintain the respect due to the courts of justice and judicial officers. (Bus. & Prof. Code, § 6068, subd. (b).) Committing any act involving moral turpitude, dishonesty, or corruption, whether as an attorney or not, whether felony or misdemeanor, constitutes grounds for disbarment or suspension. (Bus. & Prof. Code, § 6106.) Every attorney is guilty of a misdemeanor who is guilty of any deceit or collusion or consents to any deceit or collusion, with intent to deceive the court or any party. (Bus. & Prof. Code, § 6128.) This article reviews three areas of trial ethics pertaining to witnesses.

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