Witness preparation is considered by most criminal attorneys to be an essential part of trial advocacy. This paper addresses the ethical restraints on this common practice. It looks at whether the ABA Model Rules of Professional Conduct and/or the proposed ABA Criminal Justice Standards give sufficient regulation and guidance. It then suggests several factual scenarios where the current standards and rules give very little guidance. This paper suggests that the American Bar Association’s Criminal Justice Standards should include guidelines that direct the criminal attorney to avoid conduct that may not be intended to influence the witness to testify falsely, but which by its nature may have the potential to create false testimony. Additionally, the standard should contain a list of attorney conduct that could unintentionally produce false testimony. Finally, this paper proposes two standards that might provide some guidance in this important area of trial preparation that is routinely practiced, hidden from view, and many times difficult to expose.

Teaching professional responsibility generally is not an easy task, but when it is combined with the complicated issues in Elder Law, it poses obstacles, challenges, and great rewards. Many times the best way for practitioners to solve the ethical dilemmas they face is to know the right questions to ask. This Article discusses how using Elder Law examples to illustrate ethical issues can accomplish the following three goals: (1) teaching the general rules of professional responsibility using the lens of Elder Law; (2) exploring the unique roles played by Elder Law attorneys in the lives of their clients and their clients’ families; and (3) help the students learn to identify the questions and concerns raised in this particular area of law. Teaching ethics in an Elder Law context affords the students the opportunity to explore the roles of the Elder Law attorney and the need to recognize the questions and concerns in this area of law.

This essay was written for a symposium where several authors each analyzed the same factual hypothetical of a client planning to commit perjury. It argues that the lawyer’s ethical role must account for duties to the court and public, as well as the duties to the client. The tri-partite role of the attorney is the beginning point when dealing with what has been called the criminal defense attorney’s trilemma. The answer to the hypothetical posed is found in accepting the responsibility to fulfill each of the required ethical roles in any given situation. This essay argues that the situation of a client’s perjury should be analyzed with a recognition that each of the multiple roles implicate distinct responsibilities, and further that each role has an ethical perspective which must be considered and fulfilled in every action and decision the lawyer makes.