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Can opposing counsel contact my deposition witness to warn them of the subpoena?

Los Angeles, CA |

During a civil trial, we had subpoena'd a deposition witness.

Opposing counsel, who was a friend of the witness, called him on the phone to "warn" him that a process server would be looking for him, should he "plan to try to avoid it". The witness alerted my counsel about the warning, and testified to this in a declaration.

Was this attorney's conduct (in contacting a deposition witness) ethical?

What recourse would we have?

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Attorney answers 1


Lawyers are free to contact witnesses, and frequently do, and in fact are supposed to so they know what the evidence in their case is. The communications aren't attorney-client privileged, so that information is discoverable, but it's perfectly legal.

Why aren't you asking your own lawyer?

I'm only licensed in CA. Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.