Communication with Witnesses Self-Quiz








You represent Einstein in a civil battery suit against Oppenheimer. Oppenheimer intentionally lit an M-80 firework right in front of Einstein, so as to scare him a little. Einstein was not physically injured to a great extent, but was terribly hurt that his buddy Oppenheimer would commit such an indiscretion. On the day following the incident, you ring Oppenheimer’s doorbell and ask him to tell his version of the story. Are you subject to discipline?
Choice 1 Probably, because you may not contact the adversary directly.
Choice 2 Possibly, because you did not first investigate whether Oppenheimer was represented by counsel.
Choice 3 No, because it’s the day following the incident, and the case has not yet fully formed.
You represent Einstein in his civil battery suit against Oppenheimer. Einstein is suing Oppenheimer for lighting an M-80 firework, causing a little physical injury, and scaring Einstein to death. Einstein and Oppenheimer still have to work together, though, on some important lab task for the U.S. Government. They try to remain civil to each other throughout the legal proceeding, out of respect for the work they share. Their office decides to hold their annual Christmas party right outside Washington in Alexandria, Va – about a block from where you live. Einstein, kindly man, invites you to the Christmas party, thinking it would be a nice gesture. A few minutes after you arrive, you strike up a conversation with Oppenheimer about how beautiful everyone looks. Are you subject to discipline for contacting the adversary?
Choice 1 Yes, because a lawyer may not directly contact an adversary represented by counsel without counsel’s permission.
Choice 2 No, because the discussion had absolutely nothing to do with the civil battery suit.
Choice 3 No, unless Oppenheimer complains to the ethics board.
You represent John Hurt, the plaintiff in a personal injury action against a big corporation, In Case you Trip, Inc. Hurt claims that he fell off one of the defendant’s cruise ships due to the defendant’s negligence. You call one of the managers of the cruise ship on which Hurt was injured. The manager admits the crew failed to take certain precautions prior to the vessel’s journey. But the general counsel for the corporation then calls you, screaming his head off, saying you had no right to interview his firm’s management without his approval. Is he correct in this assertion?
Choice 1 Yes, without permission you interviewed a manager who could make a binding admission on the company.
Choice 2 No, the general counsel is just angry because there is solid evidence against his company, and the case could cost him his job.
Choice 3 No, because you must have unlimited access to witnesses if you are to properly conduct the case on behalf of the plaintiff.
You represent Wanda Toscanini in her divorce from Vladimir Horowitz. Horowitz refuses to retain counsel in the matter – he believes that lawyers just want to ruin his life. Horowitz tells you in a negotiation that he’s willing to cooperate with whatever you ask for, because he’s had enough of Wanda and her antics. Horowitz asks for advice on what exactly he needs to do to make the divorce final. You provide some suggestions, and he is grateful. Are you subject to discipline?
Choice 1 No, because Horowitz is not represented by counsel.
Choice 2 No, because Horowitz asked for advice himself.
Choice 3 Yes, because the most advice you are entitled to give Horowitz is to retain counsel.
Claude Debussy is suing Maurice Ravel for various copyright violations. Ravel in turn sues Debussy on the same theory. Debussy’s lawyer, Arnold Schoenberg, has apparently been delinquent. Schoenberg doesn’t even return Debussy’s calls. Debussy thinks it is due to the fact that Schoenberg isn’t really sympathetic to Debussy’s case. Debussy approaches you, a respected county attorney, and tells you about his problems with Schoenberg. Debussy asks you whether or not you think his case is sound, and whether you would agree to take the case over from Schoenberg. Are you subject to discipline for engaging in the conversation?
Choice 1 Yes, because you must first notify Schoenberg before engaging in this discussion.
Choice 2 Yes, because the case has begun.
Choice 3 No, because you are entitled to help Debussy if Schoenberg is not.
Sonya Strook is involved in a car accident with Chris Khanbergh. You represent Sonya in her action against Chris. There were four witnesses to the accident, which occurred at a busy intersection. You contact one of the witnesses for some information about the accident. Are you subject to discipline?
Choice 1 Yes, because you may not speak with a witness without obtaining permission first from the court or the witness’s counsel.
Choice 2 No, because you can always interview a witness without permission, no matter what the case.
Choice 3 No, because on the facts, you would be entitled to interview her without permission of counsel.
You represent Sonya Strook in her civil action against Chris Kahnbergh. Chris rammed into Sonya at a busy intersection. Apparently, Chris ran a red light – after the car in front of him ran a red. One of the witnesses to the accident had spoken with the police about what he saw. You want to interview him. When you call him, he tells you that he retained his own attorney in the matter because he wants to make sure he is not prosecuted for perjury. This guy is a real kook, you think to yourself. You figure you should interview him anyway, and you do so. Are you subject to discipline?
Choice 1 Yes, because the witness told you he is represented by counsel to help him defend himself in the case.
Choice 2 No, because you may interview the witness regardless of whether he is represented by counsel in the matter.
Choice 3 No, because the guy is obviously crazy.
You are representing Mrs. Dorfmann in her divorce from Mr. Dorfmann. The biggest battle is over custody of their daughter, Rita. Both parties want full custody of Rita with absolutely no visitation rights for the adversary. Neither parent believes the other should be entitled to have any contact with Rita. You propose to have Mrs. Dorfmann’s colleague testify as a character witness, and agree to pay the colleague a couple of hundred dollars to do so, to cover expenses and compensation for lost wages and time. Are you subject to discipline?
Choice 1 Yes, because your payment constitutes an attempt to unethically influence the outcome of the proceeding.
Choice 2 No, because a party is entitled to pay for a witness’s expenses and compensate for lost wages.
Choice 3 Yes, because a character witness is not the same as an expert witness – only the latter may be paid for.
You make an agreement with an expert psychologist to testify in the Dorfmann divorce case. The psychologist agrees to earn a fee if and only if your client, Mrs. Dorfmann, is satisfied with a custody award of her daughter Rita. If Mr. Dorfmann obtains custody of Rita, then the psychologist will not be paid. Are you subject to discipline for establishing this form of compensation?
Choice 1 No, because an expert witness may be forwarded a fee for his services in testifying.
Choice 2 No, because a psychologist may testify on a contingency basis, given that psychology is a wishy-washy pseudo-science.
Choice 3 Yes, because generally you may not pay for a psychologist to testify on a contingent fee.
You visit the factory where your client, Chuck Shortstamp, was injured in an industrial accident. Your intent is to interview witnesses to Chuck’s accident. You approach three of his colleagues and begin to ask questions. All three gather around together and tell the story of Chuck’s injury. At the conclusion of the discussion, you thank the men and leave the factory. You purposefully did not tell them you were Chuck’s lawyer so as not to stir any fears. Are you subject to discipline?
Choice 1 No, because you are entitled to interview witnesses to an accident.
Choice 2 Probably, because you misled people who were unrepresented by counsel.
Choice 3 No, because your mistake was too minor to warrant attention.

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