Discouraging Witness Cooperation

Rule 3.4(f) forbids a lawyer to request a person other than a client to refrain from voluntarily giving relevant information to another party.¹ The neighboring clauses of Rule 3.4 protect evidence and testimony once they exist. Paragraph (a) bars unlawfully obstructing another party's access to evidence and altering, destroying, or concealing material of potential evidentiary value, and it bars counseling or assisting anyone else to do so.² Paragraph (b) bars falsifying evidence, counseling or assisting false testimony, and offering inducements the law prohibits.³ Each of those clauses requires the lawyer to act on the evidence or on a witness's account. Rule 3.4(f) reaches earlier, before the witness has said anything to anyone, and it reaches the quietest tool a lawyer owns: a request. One sentence to a bystander, suggesting it would be better to say nothing to the other side, can close off a line of proof without a subpoena, an objection, or a record.

The rule rests on the premise that witnesses belong to neither side. A person who has relevant information generally has no duty to volunteer it, so the choice to speak with one side, both, or neither belongs to the witness.⁴ The rule protects each side's chance to ask and leaves the decision to answer where it began. A lawyer's request for silence moves that decision to a person with a stake in the outcome, and the other party never learns it was moved, because a witness who stays quiet at a lawyer's urging looks like a witness who is merely reluctant.

The rule is a general ban with two exceptions, and the subsections below take them in order. The ban applies to a request made to someone outside the client's circle. The first exception covers the lawyer's own client, because advising a client about whether and how to speak with others is part of representing that client. The second covers the client's relatives, employees, and agents, whom a lawyer may have good reason to ask for cooperation but who are easy to pressure, so that permission carries conditions.⁵ On any fact pattern, ask first who received the request.

The Basic Prohibition

The word voluntarily fixes the scope of the ban. Information is given voluntarily when a person shares it without legal compulsion, as when a bystander agrees to an informal interview.⁶ The rule therefore operates before anything is compelled, at the stage of the typical informal investigation that precedes any formal discovery, which is when each side usually learns what happened.⁷

A person who saw an event or otherwise holds relevant information generally has no obligation to share it, although a subpoena or other legal compulsion can require disclosure.⁸ That freedom raises an obvious question, because a lawyer who urges silence is urging something the law allows. The answer is that the freedom belongs to the witness. Out of the professional commitment to the truth-finding function of the legal process, a lawyer ordinarily should not advise a potential witness to exercise the right to silence, and the witness's freedom to withhold does not let the lawyer encourage reticence in order to deprive other parties of equal access.⁹

The rule takes this shape because of how the adversary system gathers facts. Each side investigates for itself, and the cheapest first step is to ask people what they saw. Witnesses belong to neither side, so equal access means that each side may ask and the witness decides whether to answer. A lawyer's request for silence replaces the witness's decision with the lawyer's preference and gives the client a pipeline to the facts that the opponent cannot match. The request also leaves no trace, which is why the rule bans the request itself and does not wait for harm to surface.

A subpoena marks the boundary of the rule. Once a court-backed order is served, the witness can be compelled to testify or produce material, and the freedom to decline is gone.¹⁰ The lawyer's problem lies in encouraging resistance to voluntary cooperation, and the availability of a subpoena later does not cure it, because the other party must first locate the witness and serve process. Telling a witness to dodge a subpoena already served may also implicate Rule 3.4(a), which bars unlawfully obstructing another party's access to evidence.¹¹ That paragraph reaches only unlawful obstruction, and a witness's silence before any subpoena is lawful. Rule 3.4(f) carries no such qualifier and reaches the request whether or not the silence it seeks would be lawful.¹²

The text yields three corollaries that an exam stem may dress in different clothing, and each is a request to refrain from voluntary disclosure.¹³

A lawyer may not ask a non-client witness to decline an interview or to refuse to speak with the other side's lawyer or investigator.
A lawyer may not suggest that a witness flee the jurisdiction or conceal her existence, because that deprives the other side of the informal interview that precedes formal discovery.¹⁴
A lawyer may not tell a non-client witness to cooperate only if subpoenaed.

Students tend to miss the third corollary, because an instruction to wait for a subpoena sounds like a reminder that the witness is not required to do more. In practice it turns a voluntary conversation into a forced one and puts on the other side the cost and delay of finding the witness and serving process. An exam stem on this topic is usually asking whether the lawyer requested silence or merely said nothing about it.

Hypothetical Illustration

A plaintiff's lawyer learns that a friend of the client watched the collision. No subpoena has issued, and the defense investigators have not yet found the friend. The lawyer suggests that the friend spend a few months out of town until the case is over. Other witnesses to the collision exist, which does not matter. The lawyer has asked a non-client to put relevant information out of the opposing party's reach, and the friend is not a relative, employee, or agent of the client whose interests the lawyer could claim to be protecting.¹⁵

In a different case, a lawyer interviews a neutral eyewitness, learns what she saw, and thanks her for her time. The lawyer says nothing about whether she should speak with the defense. She remains free to decide for herself, and the other side may interview her the next day. The lawyer made no request, so Rule 3.4(f) is not triggered.

Whether the lawyer made a request decided both scenes. The second lawyer gained only what the witness chose to say, while the first lawyer took the choice away from the witness. Students sometimes reason that because the witness has no duty to volunteer, the lawyer may encourage the witness to use that freedom. The freedom is the witness's, and a lawyer's request to exercise it for one side's benefit is the violation, even if the witness could lawfully have stayed silent unprompted.

Advising Your Own Client

The words “a person other than a client” mark the edge of Rule 3.4(f)'s ban, so the lawyer's own client sits outside it.¹⁷ The lawyer may advise the client not to speak with others, especially an opposing party, as part of the appropriate control over information and the manner of its disclosure in a representation.¹⁸ Treatises usually list this advice as the first exception to the rule. The label is a convenience, since the advice follows from the wording itself: the rule regulates requests made to others, and the client is not an “other.”

The line falls there because of what the ban protects. A request for silence is dangerous when it takes a decision that belongs to an independent witness and hands it to the side that benefits, with no one positioned to notice. The client stands differently. The client has hired the lawyer to advise on how to handle the dispute, and whether to answer an adverse party's questions is among the first things the representation raises, because an offhand remark to the other side can damage the client's position. Advice on that subject serves the client's own decision about the client's own information, and it replaces no stranger's judgment with the lawyer's preference. The advice also reaches only voluntary, informal contact. It does not license a lawyer to tell the client to hide documents or to give false answers, which Rules 3.4(a) and 3.4(b) continue to forbid.¹⁹

An exam stem containing a lawyer's “don't talk to them” advice therefore turns first on who hears it.

The advice and the setting were the same in both scenes, so the listener's relationship to the representation decided the result. Two errors follow from overlooking that. The first is to reason that because a witness has no duty to volunteer information, the lawyer may encourage any witness to stay quiet. The freedom to refuse belongs to the witness, and a lawyer's request to use it for one side is the violation.²¹ The second is to treat friendliness or shared interests as client status. A person becomes a client by being represented, and sympathy for the client does not create that relationship, though a person tied to the client by family or employment may be asked to stay silent on the conditions covered next.

Relatives, Employees, and Agents

Rule 3.4(f) permits a lawyer to ask a non-client to hold back relevant information from another party in one situation, and the permission has two parts joined by the word and. The person must be “a relative or an employee or other agent of a client,” and the lawyer must reasonably believe that “the person's interests will not be adversely affected by refraining from giving such information.”²³ Both conditions must be met. A request that satisfies the first and fails the second falls back under the general ban, so the relationship earns the lawyer only the chance to reach the second condition. The first condition identifies people who stand close to the client, and the second protects those same people from being used for the client's benefit.

The first condition rests on how people near a client tend to think. Comment 4 to Rule 3.4 explains that a lawyer may advise employees of a client to refrain from giving information to another party, “for the employees may identify their interests with those of the client.”²⁴ The mechanism is easy to trace. An employee's pay and job security depend on how the employer fares, so the employee usually wants the employer to prevail, and a relative's finances or family standing can rise and fall with the client's. Because of that close relationship, the lawyer may encourage such people to cooperate with the client in controlling outsiders' access to information.²⁵ The reference to other agents extends the group past payroll employees to anyone who acts for the client, for the same reason: the tie to the client makes shared interest plausible.

Shared interest is a presumption about the typical case, and the second condition tests it against the particular person. The lawyer represents the client and does not represent the employee or relative, so a request that helps the client can expose the person to consequences the lawyer has no authority to risk on that person's behalf. The lawyer must therefore assess the person's own position before asking. Refusing to cooperate in a law enforcement investigation might lead to the person being charged with obstruction of justice or denied leniency in criminal charges. In a civil matter, resisting an opposing party's requests could lead to the person being named as an additional party to anticipated or ongoing litigation.²⁶

Each of those consequences falls on the person and never on the client's lawyer. A person who stonewalls on a lawyer's suggestion can face an obstruction charge that the lawyer never has to answer. A person who may be charged with a crime is the one with the most to gain from cooperating, so silence kept for the client's sake can forfeit that leniency. In civil litigation, a plaintiff who meets resistance from someone who obviously knows the facts has reason to join that person as a defendant, and a bystander becomes a litigant because of advice that served someone else. Because the rule asks what the lawyer reasonably believes, a lawyer who has not looked into the person's role has no basis for the belief, and a lawyer who knows the person took part in the challenged conduct cannot hold it.

An exam stem in which a company's lawyer asks an employee to stay quiet will usually satisfy the first condition on its face, so the real question is whether the second holds.

Hypothetical Illustration

Investigators from the state attorney general's office are reviewing a trucking company after a fatal crash. The company's lawyer asks the dispatcher who prepared and signed the route logs now under review to decline an interview. The dispatcher is an employee of the client, so the first condition is met. The dispatcher also took part in the conduct being examined, and stonewalling could expose the dispatcher to an obstruction charge and cost the dispatcher any leniency.²⁷ The lawyer cannot reasonably believe the dispatcher's interests will not be adversely affected, so the request is prohibited.²⁸

At the same company, a billing clerk with no role in the logs or the route schedules is asked by the investigators for a general interview about office practices, and the company's lawyer asks the clerk to decline. The clerk is an employee with no personal exposure, and the lawyer, having checked the clerk's role, reasonably believes that declining will not hurt the clerk. Both conditions are met, and the request is permitted.²⁹ The clerk remains free to speak, and a subpoena would still compel testimony.

The relationship to the client is the same in both scenes, so the person's own exposure decided the answer. The dispatcher's involvement in the logs makes silence risky for the dispatcher, while the clerk's distance from the events removes the risk. The lawyer's belief also depends on what the lawyer knew when asking, and a lawyer who later learned that the clerk had quietly handled the log archive could no longer hold it. The exception permits a request and nothing more. It gives the lawyer no right to tell the person to lie or to hide records, because the bans on concealing evidence and on counseling false testimony apply to dealings with employees and relatives as they apply everywhere else.³⁰

Exam Analysis Steps

Because both conditions must be met and the second usually decides the case, run a request for silence in this order:

Identify the listener. A request to the lawyer's own client falls outside the ban altogether, and the remaining steps apply only to a non-client.
Ask whether the person is a relative or an employee or other agent of a client. If the answer is no, apply the general ban and stop.
Ask whether the lawyer reasonably believes the person's interests will not be adversely affected by staying silent, weighing exposure to an obstruction charge, loss of leniency in a criminal matter, and the risk of being named as a party in civil litigation.
Confirm that the lawyer asked only for silence about voluntary disclosure, because a request that the person lie or hide records violates other parts of the rule.³¹

Two errors recur on exams. The first treats the family or employment tie as the end of the analysis, when the tie only qualifies the request for the second condition. The second stretches the first condition to people who have no tie to the client at all. An employee of the opposing party is not an employee of a client, and a friendly neighbor is neither a relative nor an agent, so a lawyer who asks either one for silence is making an ordinary request to a non-client witness, and the general ban applies.³²