Can a lawyer talk to a client about the client's testimony during a recess in the middle of the client's examination?

Plain-English summary

The Committee addressed a civil trial in which counsel had his client on the witness stand on direct examination when a legal objection arose and the jury was dismissed so the court could hear argument. The question was whether counsel could ethically speak to the client during the ensuing recess about the client's testimony.

The opinion applied Rule 3.4(b), under which a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer a prohibited inducement. It concluded that a lawyer may properly speak to a client about the client's testimony during a recess in a court proceeding as long as the lawyer does not counsel or assist the client to testify falsely. The opinion noted that it did not address a situation where the court has instructed the client not to speak with counsel, citing Perry v. Leeke.

Currency note

This opinion was issued in 1992, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer talk to a client during a recess about the testimony in progress?

A: The opinion concluded yes, in a civil case, so long as the lawyer does not counsel or assist the client to testify falsely, applying Rule 3.4(b).

Q: Are there limits on what the lawyer can do during that conversation?

A: Per the opinion, the lawyer may not falsify evidence or counsel or assist false testimony; the permission is limited to legitimate discussion of the client's testimony.

Q: Does this apply if the judge ordered no contact during the break?

A: The opinion expressly did not address that situation, citing Perry v. Leeke, where the court had instructed the client not to speak with counsel.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 3.4(b) (fairness to opposing party and counsel; no falsifying evidence or assisting false testimony), which corresponds to Model Rule 3.4.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 3.4(b) (fairness to opposing party and counsel; false testimony) (cf. Model Rule 3.4)

Cases:

• Perry v. Leeke, 488 U.S. 272 (1989), where the court had instructed a witness not to consult counsel during a recess.

See also

• MS Bar Ethics Op. 205: Disclosing Perjury to a Court
• MS Bar Ethics Op. 213: Reporting a Non-Client's Crime
• MS Bar Ethics Op. 203: Surreptitious Recording

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/200/
• Original PDF: https://www.msbar.org/media/1456/35a_et_op_200.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION NO. 200

OF THE MISSISSIPPI BAR

RENDERED June 12, 1992

FAIRNESS TO OPPOSING PARTY AND COUNSEL- It is ethically permissible for an attorney to speak to his client in a civil lawsuit concerning the client's testimony during a court recess as long as the attorney does not counsel or assist the client to testify falsely.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on following facts:

Counsel places his client on the witness stand in a civil lawsuit before a jury and, during the scope of direct examination of the client by his counsel, there arises a legal objection and the jury is dismissed for the Court to hear argument.

The Ethics Committee has been requested to opine as to whether it is ethically proper for counsel to speak to his client during an ensuing recess concerning the client's testimony.

M.R.P.C. 3.4 states in part that

A lawyer shall not:

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law....

Therefore it is the opinion of this Committee that an attorney may properly speak to a client concerning the client's testimony during a recess in a court proceeding as long as the attorney does not counsel or assist the client to testify falsely. It should be noted that this opinion does not involve a situation where the Court has instructed the client not to speak to counsel. See Perry v. Leeke, 488 U.S. 272 (1989).