Request for season tickets
Lawyers are prohibited from soliciting substantial gifts from clients. Allison might argue that season tickets are not a substantial gift, but given that such tickets generally cost several thousand dollars, they are typically considered significant. Allison might also argue that the tickets were part of her legal fees and not gifts, but this argument raises other serious issues. In criminal cases, contingency fees are strictly prohibited. Therefore, Allison’s condition of receiving season tickets only if she prevails in the case clearly violates this rule. Moreover, ABA requires that any contingency fee agreement must be in writing, while California law mandates that any legal fees exceeding $1000 also be documented in writing. The request for any legal fees should have been explicitly included in the retainer agreement rather than verbally requested after the fact.
Therefore, Allison violated ethical standards by inappropriately soliciting gifts from a client.
Payments to Wilfred
Paying witnesses for their time, including transportation, lost wages, and accommodation expenses, is generally permissible. Lawyers can also compensate witnesses for the time spent in preparation for testimony. Therefore, the payments to Wilfred for his testimony and preparation time per se do not raise ethical concerns. However, ethical issues arise from Allison's condition that these payments were contingent on Wilfred refusing to meet with the prosecution prior to the trial. Lawyers cannot ethically restrict third parties from providing information to the opposing party unless these third parties are relatives, employees, or agents of their client. In this case, there is no evidence to suggest that Wilfred has any such relationship with Davos, making Allison's stipulation a breach of the duty of fairness to the opposing party.
Payment to Eileen
Compensating expert witnesses for their time and expertise is a common and acceptable practice in legal proceedings. Again, paying Eileen, an experienced video technician, a reasonable hourly rate for her testimony at trial per se is not a violation of professional ethics.
Presentation of Eileen’s expert opinion
Attorneys must not submit information to the court that they know to be false, as this violates their duty of candor to the tribunal. In this case, Allison’s actions in influencing Eileen to provide testimony that contradicted their earlier agreement - that the video showed strong evidence of assault - constitutes a serious ethical breach. This act of soliciting Eileen to alter her opinion for trial purposes suggests an intent to deceive the court.
Moreover, while preparing witnesses, attorneys should facilitate the expression of the witness's own opinions and knowledge, rather than instructing them on what to say. Allison’s involvement in changing Eileen’s testimony could be viewed as suborning perjury, especially if it is proven that Allison encouraged Eileen to testify in a manner that was knowingly contrary to her actual expert opinion.
Allison might argue that an expert witness’s testimony is merely an opinion, not a statement of fact. However, even opinions must be genuinely held by the expert. Encouraging an expert to assert an opinion that does not reflect their true professional judgment not only undermines the judicial process but could potentially raise issues of perjury if the expert’s testimony is proven to be intentionally misleading. Thus, this manipulation of expert testimony could also breach the ethical duty to abide by the law.
Allison’s statements in closing argument
While it is Allison's duty to zealously advocate for her client, this does not include the license to mislead the jury or court. By stating that there was no assault, if contrary to the evidence presented, Allison potentially breaches this duty. However, Allison might defend her statement by claiming that she merely said, "the video showed that there was no assault" framing it as an opinion based on the interpretation of the evidence, rather than a direct assertion of fact. This is a close call and typically, the state bar may accept such a framing in closing arguments as it reflects an argumentative interpretation rather than a factual declaration.
However, the phrase "in my own opinion" used in her closing argument presents a clear issue. It is inappropriate for attorneys to insert their personal beliefs into arguments; they are required to maintain a professional detachment and rely solely on evidence and law to make their case. Expressing a personal belief about the client’s innocence oversteps this boundary and could be seen as a breach of duty of fairness to the opposing party.
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