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.
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