Professor Bruce Green shared expert advice on avoiding legal ethics traps with the American Bar Association.
Problem: Potentially hostile witnesses
There are some potentially thorny ethics traps for lawyers practicing criminal law. Bruce A. Green, a professor at Fordham University School of Law who writes regularly on ethics issues in criminal law, points to the problem of a lawyer interviewing a witness who later turns out to be hostile. “Criminal defense lawyers have a duty to investigate, which typically includes making an effort to interview witnesses.”
Lawyers sometimes do these interviews alone, but Green says that can create problems if the witness later testifies differently in court. “The lawyer might like to elicit or introduce the witness’s prior statements,” he says. “But the lawyer will bump up against the rules that say a lawyer may not be both an advocate and a witness at trial.”
Green points to the language of ABA Criminal Justice Standard for the Defense Function 4-4.3(f), which reads: “When the need for corroboration of an interview is reasonably anticipated, counsel should be accompanied by another trusted and credible person during the interview. Defense counsel should avoid being alone with foreseeably hostile witnesses.”