Saturday, October 7, 2017

Payment Offer For Testimony Draws Suspension

The Nevada Supreme Court imposed a 35-day suspension rather than the proposed reprimand for an attorney's communication with a witness

This disciplinary proceeding grows out of a letter and followup email that Callister sent D.E., who witnessed a will Callister's client disputed. In them, Callister offers D.E. $7,000 "[i]n exchange for your honest testimony. . . that you never witnessed the Decedent signing a will." The letter runs several pages and threatens D.E. with personal liability and "the legal implications of perjury" if D.E. does not disavow the will. Callister sent the same letter, but not the follow-up email, to another third party who also had witnessed the will.

It is unethical for a lawyer to offer money to a fact witness contingent on the content of the witness's testimony.

The court

The record does not support that Callister's conduct was merely negligent. His communications with D.E. were deliberate, not a casual comment in a courthouse elevator that an unnoticed witness accidentally overheard. The undisputed evidence shows that: (1) Callister wrote and sent a letter to a third-party fact witness, offering $7,000 if the witness would testify that the will he had witnessed was a fake; (2) he threatened the witness with civil litigation and criminal exposure if he did not testify as Callister wanted; and (3) a month later, Callister resent the letter as a .pdf to an email address and reiterated his cash offer, at the witness's request. From the letter and email it appears that Callister intended to do exactly what he did. If Callister was negligent, it was in not recognizing that his conduct violated the Rules of Professional Conduct until after the fact. But ignorance or mistake of law does not transform an intentional act—improperly influencing, or attempting to influence, fact witness testimony—into negligence.

Callister defended his conduct before the Disciplinary Board on the bases the will was forged, he needed D.E. to disavow the will to prove his case, and the testimony he solicited was truthful. But "lawyers cannot condition fact witnesses' compensation on the content, substance, or perceived usefulness of their testimony." Douglas R. Richmond, Compensating Fact Witnesses: The Price Is Sometimes Right, 42 Hofstra L. Rev. 905, 911 (2014)...

When apprised of Canister's dealings with D.E., the judge presiding over the will contest excluded D.E.'s testimony, disqualified Callister, and reported the matter to the State Bar. This cost Callister's client his lawyer of choice and protracted the proceeding, adding legal complications and needless expense. It also imposed systemic costs, fostering public cynicism of a system where fact witness testimony appears to be bought and sold. To his credit, Callister revoked the offer to D.E. after talking to his partner about the ethical problems it posed, before any money changed hands. This prevented further harm but did not reverse the prejudice his misconduct caused.

The appropriate sanction depends on the seriousness of the offense and case-specific aggravating and mitigating factors. Despite the seriousness of the offense, considerable mitigation exists: Callister has no prior disciplinary offenses, eventually revoked his improper communications, and enjoys an otherwise good reputation. Nonetheless, the seriousness of the offense, the prejudice it caused, and the fact it was deliberate make public reprimand insufficient.

The case is In re Jonathan Callister. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/10/the-nevada-supreme-court-imposed-a-35-day-suspension-rather-than-the-proposed-reprimand-for-an-attorneys-communication-with-a.html

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