VIRGINIA LEGAL ETHICS OPINION 1736
ATTORNEY THREATENING NONPARTY OPPOSING WITNESS
WITH "APPROPRIATE LEGAL ACTION" FOR WITNESS'S DEFAMATORY
STATEMENT ABOUT ATTORNEY'S CLIENT
You have presented a hypothetical situation in which an attorney
is representing Plaintiffs in a discrimination claim. Plaintiffs
contend that Defendants are attempting to force them to move from
the neighborhood because of their race, and Defendants contend
that the problem is Plaintiffs' disruptive behavior. Prior to
the lawsuit, a resident of the neighborhood who is a nonparty
witness wrote to the homeowner's association complaining of the
Plaintiffs' behavior. Plaintiffs' attorney has written the
nonparty witness, accusing the witness of making defamatory
statements and indicating that if the witness stands by the
statements, Plaintiffs' attorney will seek "appropriate legal
action." Plaintiffs' attorney has now subpoenaed this witness
for depositions and also subpoenaed witness's homeowner's
insurance policy "just in case appropriate legal action is
necessary."
Under the facts you have presented, you have asked the committee
to opine as to whether this conduct by Plaintiffs' attorney is
unethical in that it constitutes threatening and harassing a
nonparty witness, or an attempt to intimidate the witness not to
testify about the Plaintiffs' behavior as reported to the
homeowner's association.
The disciplinary rules which appear to apply to your inquiry are
DR 7-102 (A)(1) and(2) prohibiting the assertion of frivolous
claims or asserting positions to harass or maliciously injure
another; DR 7-108 (B) and EC 7-24 which prohibit a lawyer from
causing a witness to secrete himself for the purpose of making
himself unavailable as a witness; and DR 1-102 (A) (3) which
prohibits a lawyer from committing a deliberately wrongful act
reflecting adversely on the lawyer's fitness to practice law.
The committee has previously opined that it does not see a
distinction between advising or causing a witness not to testify
on the one hand, and advising or causing a witness to hide or
leave the jurisdiction, on the other hand. LEO 1678 (applying DR
7-108; EC 7-24). In any event, it is improper for a lawyer,
directly or indirectly, to persuade an opponent's witness not to
testify. Id. See also North Carolina State Bar v. Graves, 50
N.C. App. 450, 274 S.E.2d 396 (1981) (suspension of lawyer who
attempted to influence a potential witness not to testify);
Oregon State Bar Op. 1992-132 (lawyer may not attempt to dissuade
either an adverse fact witness or an expert witness from
testifying); Harlan v. Lewis, 982 F.2d 1255 (6th Cir. 1983)
(defense attorney in medical malpractice case sanctioned for
telling non-party physician who had treated plaintiff that he
could be sued too, and that without his testimony, the
plaintiff's suit would probably not be successful); Virginia
Rules of Professional Conduct, Rule 3.4 (a) (a lawyer shall not
obstruct another party's access to evidence) and 3.4 (g) (request
a person other than a client to refrain from voluntarily giving
relevant information).[1]
In the facts you present, the committee believes that the answer
to your inquiry depends upon the motivation and intent of the
lawyer representing Plaintiffs. Such matters involve factual
determinations beyond the purview of the committee. In Attorney
M v. Mississippi Bar, 621 So.2d 220 (Miss. 1992), the lawyer
warned a witness who was a doctor that even though he "didn't do
any thing wrong," the lawyer might be "forced" to join the doctor
as a co-defendant in a malpractice case if the doctor was not
willing to state that the plaintiff left his care in the same
condition as when she arrived at the hospital. The court looked
to Rule 3.1 noting that whether the lawyer viewed the doctor as
blameless was irrelevant as long as the claim was colorable.
In the situation in your request, if the threatened legal action
is without legal basis in law or fact, and the threatened suit is
made merely to harass and intimidate the witness, or influence
the witness not to come forward with truthful and relevant
information, then the attorney for Plaintiffs would be in
violation of the cited rules and opinions. On the other hand, if
the lawyer for Plaintiffs has a well-founded belief that the
threatened legal action is warranted based on the contents of the
complaint letter sent to the homeowner's association, or that the
letter gives rise to a colorable action, then such conduct would
not be improper.
Committee Opinion
October 20, 1999
1 Comment [1] to Rule 3.4 states:
The procedure of the adversary system contemplates that
the evidence in a case is to be marshaled competitively
by the contending parties. Fair competition in the
adversary system is secured by prohibitions against
destruction or concealment of evidence, improperly
influencing witnesses, obstructive tactics in discovery
procedure, and the like.
The new rule, with accompanying comments, becomes
effective January 1, 2000.
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