Can a lawyer threaten a nonparty witness with a defamation suit over the witness's statement, when the threat may be meant to keep the witness from testifying?

Plain-English summary

In a housing-discrimination case, a neighborhood resident who was a nonparty witness had written the homeowner's association complaining of the plaintiffs' behavior. The plaintiffs' attorney wrote the witness, accusing her of defamatory statements and warning that if she stood by them he would seek "appropriate legal action," then subpoenaed the witness for deposition and subpoenaed her homeowner's insurance policy "just in case appropriate legal action is necessary." The committee was asked whether this amounted to improperly threatening or intimidating the witness to keep her from testifying.

The committee identified the former Code provisions in play: DR 7-102(A)(1) and (2) (no frivolous claims or positions taken to harass or maliciously injure), DR 7-108(B) and EC 7-24 (not causing a witness to make herself unavailable), and DR 1-102(A)(3) (no deliberately wrongful act reflecting adversely on fitness). Citing LEO 1678, it noted it draws no distinction between causing a witness not to testify and causing a witness to hide, and that it is improper to persuade an opponent's witness, directly or indirectly, not to testify; it also pointed to Rule 3.4(a) and 3.4(g) of the new Rules.

The committee concluded the answer depends on the lawyer's motivation and intent, a factual question beyond the committee's purview. If the threatened legal action is without basis in law or fact and is made merely to harass and intimidate the witness or to influence her not to come forward with truthful, relevant information, the lawyer violates the cited rules. But if the lawyer has a well-founded belief that the threatened action is warranted based on the witness's complaint letter, or that the letter gives rise to a colorable claim, the conduct is not improper. The committee drew on out-of-state authority (including Attorney M v. Mississippi Bar) treating the existence of a colorable claim as the dividing line.

Currency note

This opinion was issued in 1999, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. 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 threaten a witness with a defamation suit over what the witness said?

A: Under this 1999 opinion, it depends. The committee concluded a threat is improper if it lacks any basis in law or fact and is made merely to harass or intimidate the witness or keep her from testifying, but is permissible if the lawyer has a well-founded belief the claim is warranted or colorable.

Q: What makes such a threat cross the line into misconduct?

A: The committee tied it to motive and merits: a baseless threat aimed at influencing the witness not to come forward with truthful, relevant information violates the rules against frivolous, harassing positions and against causing a witness to become unavailable.

Q: Does it matter whether the lawyer thinks the witness actually defamed the client?

A: What matters is whether there is a colorable claim. Citing Attorney M v. Mississippi Bar, the committee treated the existence of a colorable action as the dividing line, rather than the lawyer's view of the witness's blamelessness.

Background and rules framework

The opinion was decided under Virginia's former Code of Professional Responsibility: DR 7-102(A)(1) and (2) (frivolous or harassing claims), DR 7-108(B) and EC 7-24 (not causing a witness to become unavailable), and DR 1-102(A)(3) (deliberately wrongful acts). It also cites Rule 3.4(a) and 3.4(g) of the new Rules of Professional Conduct (obstructing access to evidence; asking a person not to volunteer information) and the colorable-claim standard reflected in Rule 3.1.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-102(A)(1), (2); DR 7-108(B); EC 7-24; DR 1-102(A)(3) (Code of Professional Responsibility)
• Virginia Rule 3.4(a), 3.4(g) and Comment 1; Rule 3.1 (colorable claims)

Cases:

• Attorney M v. Mississippi Bar, 621 So. 2d 220 (Miss. 1992), colorable-claim standard for threatening a witness.
• North Carolina State Bar v. Graves, 50 N.C. App. 450 (1981); Harlan v. Lewis, 982 F.2d 1255 (6th Cir. 1983), discipline/sanctions for dissuading a witness from testifying.

Other opinions cited:

• Virginia LEO 1678: no distinction between causing a witness not to testify and causing a witness to hide.
• Oregon State Bar Op. 1992-132: a lawyer may not dissuade an adverse fact or expert witness from testifying.

See also

• VA LEO 1795: Advising Witnesses Not to Cooperate
• VA LEO 1755: Threatening Charges to Stop Contact
• VA LEO 1741: Prosecutors Advising Witnesses

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1736.pdf

Original opinion text

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

Committee Opinion
October 20, 1999
LEGAL ETHICS OPINION 1736

ATTORNEY THREATENING
NONPARTY OPPOSING WITNESS
WITH “APPROPRIATE LEGAL
ACTION” FOR WITNESS'S
DEFAMATORY STATEMENT ABOUT
ATTORNEY'S CLIENT.

You have presented a hypothetical situation in which an attorney is representing
Plaintiffs in a discrimination claim. Plaintiffs contend that Defendants are attempting to
force them to move from the neighborhood because of their race, and Defendants contend
that the problem is Plaintiffs' disruptive behavior. Prior to the lawsuit, a resident of the
neighborhood who is a nonparty witness wrote to the homeowner's association
complaining of the Plaintiffs' behavior. Plaintiffs' attorney has written the nonparty
witness, accusing the witness of making defamatory statements and indicating that if the
witness stands by the statements, Plaintiffs' attorney will seek “appropriate legal action.”
Plaintiffs' attorney has now subpoenaed this witness for depositions and also subpoenaed
witness's homeowner's insurance policy “just in case appropriate legal action is
necessary.”
Under the facts you have presented, you have asked the committee to opine as to
whether this conduct by Plaintiffs' attorney is unethical in that it constitutes threatening
and harassing a nonparty witness, or an attempt to intimidate the witness not to testify
about the Plaintiffs' behavior as reported to the homeowner's association.
The disciplinary rules which appear to apply to your inquiry are DR:7-102(A)(1) and(2)
prohibiting the assertion of frivolous claims or asserting positions to harass or
maliciously injure another; DR:7-108(B) and EC:7-24 which prohibit a lawyer from
causing a witness to secrete himself for the purpose of making himself unavailable as a
witness; and DR:1-102(A)(3) which prohibits a lawyer from committing a deliberately
wrongful act reflecting adversely on the lawyer's fitness to practice law.
The committee has previously opined that it does not see a distinction between advising
or causing a witness not to testify on the one hand, and advising or causing a witness to
hide or leave the jurisdiction, on the other hand. LE Op. 1678 (applying DR:7-108; EC:724). In any event, it is improper for a lawyer, directly or indirectly, to persuade an
opponent's witness not to testify. Id. See also North Carolina State Bar v. Graves, 50
N.C. App. 450, 274 S.E.2d 396 (1981) (suspension of lawyer who attempted to influence
a potential witness not to testify); Oregon State Bar Op. 1992-132 (lawyer may not
attempt to dissuade either an adverse fact witness or an expert witness from testifying);
Harlan v. Lewis, 982 F.2d 1255 (6th Cir. 1983) (defense attorney in medical malpractice
case sanctioned for telling non-party physician who had treated plaintiff that he could be
sued too, and that without his testimony, the plaintiff's suit would probably not be
1
Comment [1] to Rule 3.4 states:
The procedure of the adversary system contemplates that the evidence in a case is to be
marshaled competitively by the contending parties. Fair competition in the adversary
system is secured by prohibitions against destruction or concealment of evidence,
improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

Committee Opinion
October 20, 1999
successful); Virginia Rules of Professional Conduct, Rule 3.4(a) (a lawyer shall not
obstruct another party's access to evidence) and 3.4(g) (request a person other than a
client to refrain from voluntarily giving relevant information).1 In the facts you present,
the committee believes that the answer to your inquiry depends upon the motivation and
intent of the lawyer representing Plaintiffs. Such matters involve factual determinations
beyond the purview of the committee. In Attorney M v. Mississippi Bar, 621 So. 2d 220
(Miss. 1992), the lawyer warned a witness who was a doctor that even though he “didn't
do any thing wrong,” the lawyer might be “forced” to join the doctor as a co-defendant in
a malpractice case if the doctor was not willing to state that the plaintiff left his care in
the same condition as when she arrived at the hospital. The court looked to Rule 3.1
noting that whether the lawyer viewed the doctor as blameless was irrelevant as long as
the claim was colorable.
In the situation in your request, if the threatened legal action is without legal basis in
law or fact, and the threatened suit is made merely to harass and intimidate the witness, or
influence the witness not to come forward with truthful and relevant information, then the
attorney for Plaintiffs would be in violation of the cited rules and opinions. On the other
hand, if the lawyer for Plaintiffs has a well-founded belief that the threatened legal action
is warranted based on the contents of the complaint letter sent to the homeowner's
association, or that the letter gives rise to a colorable action, then such conduct would not
be improper.

1

Comment [1] to Rule 3.4 states:

The procedure of the adversary system contemplates that the evidence in a case is to be
marshaled competitively by the contending parties. Fair competition in the adversary
system is secured by prohibitions against destruction or concealment of evidence,
improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.