(a) Communications with Parties and Witnesses Problem p. 435 Customer (Ted Downs) in grocery store (Ashton) slips and falls with injury, sues Ashton alleging negligence in failure to keep floors clean. 5 witnesses: Ann Otherton, customer Loretta Green, produce manager Justin Kidd, part-time shelf-stocker Harold Eberly, formerly VP (quit a month ago) Hazel Sappington, Ashton’s expert

Problem p. 435 c’t’d (a) D’s lawyer Lester Minard wants to ask each of the witnesses to refrain from talking to P’s lawyer or anyone working for him. Permissible? MRPC 3.4(f) (1) is any of them a client? (2) is any of them an employee of D? (3) is any of them an agent of D? (4) if none of the above, can Minard inform them of their right not to talk voluntarily? (5) if one of the above, is there any indication that the witness’s interests would be adversely affected by not cooperating?

Problem p. 435 c’t’d (b) P’s lawyer Thatcher would like to interview each of the witnesses (without Menard being advised or present). OK? (i) is any of them represented by Menard or another lawyer? (ii) employee or agent of D who supervises, directs, or regularly consults with Menard, or has authority to settle the matter? (iii) whose acts or omissions are imputable to D for liability purposes? (iv) whose testimony would bind D re proof of matter? (Restatement s. 100 Comment (e) (v) if any of these, is the consent of D or of the witness as such sufficient? If not, why not?

Problem p. 435 c’t’d (c) P’s attorney Thatcher wants to use a P.I. to interview the witnesses. (i) can the P.I. contact witnesses she would be precluded from contacting? (ii) contact witnesses not precluded to her, w/ instructions not to disclose the identity of the client? (iii) contact such witnesses, w/o disclosing client’s identity unless asked?

Deceptive approach to witnesses not covered by no-contact rule (4.2) In re Air Crash Disaster, p. 436 : survey about training sent to pilots who were not employees of defendant airline, without disclosure of sponsors or purpose, violation of Rule 4.3 Office of Lawyer Regulation v. Hurley (S.Ct. Wis. 2009): this rule, and related rules 4.1 and 8.4, don’t necessarily apply in criminal cases; prosecutors are allowed to use deception in obtaining evidence, and defense counsel are too – OK for counsel to induce prosecuting witness to exchange computer for a new one ostensibly in a research project without disclosing who it was for, showing necessity

Communications with Judges Problem pp (a) How should L respond to judge’s request? (i) would L’s communication be ex parte? MRPC 3.5(b) (ii) would it matter that the judge initiated the contact? (iii) that L spoke objectively and avoided advocating his own position? (iv) that the motion were not on the merits? (v) can L just send the judge a memo on the subject?

Problem pp c’t’d (b) Should the judge be disciplined? MCJC Canon 3(B)(7) (1990 versi0n), Rule 2.9 (2008 version) (i) would it matter how L responds? (c) Would any of the actions of L regarding jurors and potential jurors be improper? MRPC 3.5(b,c) (i) the questionnaire? Washington, p. 450, and n. 1 p. 452 (ii) the exchange w/ juror during trial break? What is L’s duty now? (iii) post-verdict questioning of jurors by L’s assistant?