$ + witness = suspension in Nevada; lawyer was not “merely negligent”

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​Oct. 20, 2017

By Karen Rubin

$ + witness = suspension in Nevada; lawyer was not “merely negligent”A lawyer who offered a witness $7,000 for his “honest testimony” was suspended for 35 days by the Nevada Supreme Court, after a state discipline board divided on whether a public reprimand was sufficient.

The opinion is a reminder about the limits of advocacy.

Truth is no defense

The lawyer’s client disputed a will. The lawyer sent a person, identified in the court’s opinion as D.E., a letter offering money “in exchange” for D.E.’s testimony that D.E. had never witnessed the decedent signing a will, and that the will he had witnessed was a fake.

In the several-page letter, the lawyer also threatened D.E. with personal liability and cited “the legal implications of perjury if D.E. didn’t disavow the will.”

A month later, the lawyer re-sent the letter in an e-mail, and reiterated the cash offer.

The hearing panel unanimously found a violation of Nevada’s Rule 3.4(b) (identical to the Model Rule), which prohibits offering “an inducement to a witness that is prohibited by law.” Here, the lawyer overstepped with the threat of a perjury accusation if D.E. didn’t execute the affidavit — that violated the state statute criminalizing extortion, the court said.

The lawyer argued that the will was in fact forged, and that the only testimony being solicited from D.E. was truthful.

The court shot that argument down, citing the Restatement of the Law Governing Lawyers, which emphasizes that the prohibition is against offering any consideration contingent on the content of the testimony. As an Illinois district court held, for purposes of the rule, it doesn’t matter if the testimony is “truthful or not.”

Not merely negligent?

Two of the three members of the hearing panel proposed that the lawyer merely be reprimanded, urging that the conduct was only “negligent.” But the court sided with the third panel member, finding that the conduct was intentional, and deserved an actual suspension.

This was no “casual comment in a courthouse elevator that an unnoticed witness accidentally overheard,” the court said. The court ruled that the letter and e-mail to D.E. showed that the lawyer intended the conduct, and the only negligence was perhaps in not recognizing that it violated the ethics rules. But ignorance of the ethics rules — like the  law — is no excuse, according to the court.

Systemic costs

Interestingly, the pay-for-testimony deal never actually went forward—the court noted that, to the lawyer’s credit, the offer to D.E. was revoked after the lawyer talked to a law partner about “the ethical problems it posed,” and before any money changed hands.

While that helped prevent further harm, the court said, the lawyer’s conduct nonetheless injured the client because the trial judge excluded D.E.’s testimony and disqualified the lawyer after learning of the misconduct.

The misconduct also harmed the system itself, the court said, “fostering public cynicism [about] a system where fact witness testimony appears to be bought and sold.”

Take-home lessons

Getting suspended from practice is never a good thing—whether it’s for a month, as here, or for a longer time.  But in the grand scheme of things, 35 days off is not terribly harsh, and there’s room to consider two mitigating points in this case that appear to justify the penalty.

First, based on the opinion, the lawyer was trying to elicit true testimony. The disciplinary opinion omits some details that would have explained why the lawyer could have thought it was necessary to offer money (was the witness reluctant? did the lawyer think the witness would be untruthful?), but the court seemed to accept that the lawyer was not trying to have the witness offer untrue testimony. Second, when advised that it was improper (and yes, the lawyer should have known that), the lawyer revoked the offer.

The court itself noted that the lawyer otherwise enjoyed a good reputation, and this was a first disciplinary offense.

Bottom line—don’t let this happen to you.

Content courtesy of The Law for Lawyers Today: Ethics, Professional Responsibility and More blog. Ohio State Bar Association member Karen Rubin is an attorney for Thompson Hine.

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