Q: Dear Ethics Lawyer, I represent a client in litigation during discovery. May I tell an unrepresented third-party witness that they are not obligated to speak to opposing counsel about the matter? May I ask our client to reach out to third-party witnesses with which the client has an ongoing relationship to ask them not to speak to opposing counsel about the matter?
A: Model Rule 3.4(f) prohibits a lawyer from asking a third-party witness not to speak to opposing counsel about a matter. This situation poses a nuanced step back from that, to more simply let the witness know that they are not compelled to speak to opposing counsel, and may decline at their option, unless subpoenaed or ordered to do so. Rule 4.3 describes obligations relating to dealings with third parties: not projecting that the lawyer is disinterested, correcting any misunderstanding about the lawyer’s role, and not giving legal advice, except advising them to secure counsel if the third-party’s interests are possibly in conflict with those of the lawyer’s client.
There are a few ethics opinions concerning the specific question, as potential discouragement of an unrepresented witness from speaking to opposing counsel. Most have deemed it not inappropriate to advise an unrepresented witness that they are not required to speak to counsel, at least in the absence of other inducements or requests. See, e.g., D.C. Ethics Op. 360 (2011). Check the jurisdiction in which you are litigating for any contrary authority.