Disciplinary counsel can communicate with a law firm to prepare for trial.

If there is an attorney disciplinary case against me, can disciplinary counsel speak to one of my law partners if I am represented by counsel?

Samuel C. Stretton.

The answer is maybe. The rule at issue is Rule 4.2 of the Rules of Professional Conduct. Rule 4.2 precludes communication with a client about the subject matter representation when that person is represented by counsel unless there is consent. Rule 4.2 in the comment elaborates on the situation when there is a business or corporation. Under Comment 7 to Rule 4.2, that rule prohibits communication with a constituent of an organization with those employees that combine the corporation.

If one is dealing with a law firm and one of the partners is represented by counsel because there is a disciplinary complaint against the partner, the question becomes whether or not disciplinary counsel can talk to another partner, particularly one who might be involved in the underlying disciplinary complaint. It appears disciplinary counsel can as long as the law firm is not the subject of the disciplinary complaint. Finally, the Rules of Professional Conduct require lawyers to cooperate with attorney disciplinary investigations.

Keep in mind when representing a lawyer in a disciplinary action, except for the most extreme situation, the goal is to cooperate with the Office of Disciplinary Counsel. Cases can be resolved early on if that occurs. If one takes a hardball approach, particularly if the evidence is not strong in their favor, the opportunity to get a better resolution will pass if a petition for discipline is filed.

But it appears that if the lawyer is only representing the respondent and not the law firm, then disciplinary counsel can speak to anyone in the firm necessary to complete their investigation or prepare witnesses for trial. Therefore, the answer is disciplinary counsel can communicate and, except in the rarest of circumstances, it might be in everyone's interest to allow them to do so as part of their valid investigation or trial preparation.

A lawyer cannot present false testimony in court.

Can I present a witness who believes they are telling the truth in a criminal case, but I know their testimony is incorrect despite their belief?

The question is an interesting one and presumably it is one that often is used in ethics examinations. It raises issues of zealous representation, but also issues of basic honesty. Many times, witnesses are mistaken. For instance, an alibi witness might believe the person stayed at home all night, but did not realize the person climbed out their window. Another witness might believe that they did not see a person that night when, in fact, that person was present.

The question is, can a lawyer present a witness who absolutely believes they are telling the truth even though the lawyer knows that the testimony is false? For instance, the lawyer's client might have told the lawyer that the client committed the crime. If that is the case, then an alibi witness who believed the person was home when they were not, even though they believed it was true, could not be presented.

The answer is fairly simple when one looks at it not from zealous representation perspective, but from the duties and responsibilities of another professional with responsibility to the court in terms of honesty and truthfulness. It is the lawyer's obligation to always be truthful in court and not present false testimony. Therefore, if the lawyer knows the testimony is false, the belief of the witness is irrelevant. If the lawyer knows the person's testimony is false, then the lawyer can't present that testimony even though the witness would swear on a hundred Bibles and truly believe they were correct. Rule 8.4(c) makes it professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Presenting testimony, a lawyer knows to be false, even though the witness believes it is true, is prohibited. Also, Rule 8.4(d) precludes a lawyer from engaging in conduct that is prejudicial to the administration of justice. Presenting false testimony is a classic example of conduct prejudicial to the administration of justice.

There are also other rules that would also prohibit such conduct, such as Rule of Professional Conduct 3.3. Under Rule 3.3(a)(3), a lawyer shall not knowingly offer evidence that the lawyer knows to be false. If the lawyer later learns that the evidence is false, the lawyer still has a remedial duty to correct the false testimony.

In a criminal case, the defendant can take a stand even though he is providing false testimony because the defendant has an absolute right to testify. But the lawyer can't assist the defendant in presenting false evidence nor can the lawyer argue the false testimony in the closing argument.

But in a criminal case, would the same rule apply to a witness? The answer it obviously no. The reason a criminal client can testify is because of the constitutional right of any defendant to testify. There is also a constitutional right of effective assistance of counsel, which places a criminal defendant in a somewhat different position than a civil defendant where a lawyer can immediately correct false information and not allow false testimony.

But these constitutional rights only apply to the defendant. These rights do not apply to the defendant's witnesses. There is no exception that defendant's witnesses can testify falsely.

As a professional, the duty is always on the lawyer's shoulders. As a professional, a lawyer cannot act unethically, cannot lie, cannot present false evidence, etc. There are no exceptions to these rules. The zealousness to vigorously defend a client is commendable, but does not allow violation of the Rules of Conduct. Therefore, even if a witness believes they are telling the truth, but the lawyer knows the testimony is incorrect, a lawyer cannot in any way, shape, or form utilize or present that testimony.

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, Pennsylvania, 19381.