Let's Be Honest: A Critical Analysis of Florida Bar v. Wohl and the Generally Inconsistent Approach Toward Witness Inducement Agreements in Civil and Criminal Cases

Georgetown Journal of Legal Ethics, The, Summer 2005 by Swanson, Joseph

I. INTRODUCTION

Model Rule 3.4(b) provides, "A lawyer shall not. . . offer an inducement to a witness that is prohibited by law."1 Applying the state's analogous rule,2 the Supreme Court of Florida suspended an attorney for ninety days in Florida Bar v. Wohl3 after the attorney drafted and negotiated an agreement that provided a potential witness with considerable compensation for her "assistance" in an estate dispute. The court said, "We condemn the practice of compensating fact witnesses in violation of [R]ule 4-3.4(b) in no uncertain terms."4

Wohl represents a recent example of a court's refusal to tolerate a witness inducement agreement in a civil case. Although courts generally subject civil litigators to ethics rules barring witness inducements, similar arrangements in criminal cases are routinely allowed.5 In fact, only a handful of courts have condemned a prosecutor's use of such an agreement to induce a witness to testify.6 Why are some lawyers treated differently than others, and why are ethics rules barring witness inducements selectively enforced?

This Note will argue that there is no material distinction between the inducement prohibited in Wohl and those frequently used in criminal prosecutions. Witness inducement agreements in both civil and criminal cases carry the same risks of unreliable testimony, and the procedural safeguards that currently make these arrangements acceptable in criminal cases could be applied in civil disputes. By allowing these agreements in only one type of case, courts signal that ethics rules will be enforced only insofar as no greater policy concern, such as prosecuting criminals, exists. This undermines the legitimacy of the ethics rules and ought to be addressed.

This Note begins with a close examination of the outcome in Wohl and other civil cases, followed by a background discussion of witness inducement agreements in criminal cases. After arguing that there is little difference between the agreement condemned in Wohl and those accepted in criminal cases, the Note examines the leading decisions behind the proposition that agreements between prosecutors and witnesses are somehow different. These cases show that the likely explanation for this distinction is that courts fear inhibiting prosecutorial discretion and interfering with a long-standing practice. Finally, after an examination of various ways to address this inconsistent treatment of witness inducement agreements, the Note concludes that the most practical and honest solution is to allow them in all cases-civil and criminal. As a result, ethics rules prohibiting witness inducements should be either repealed or ignored.

II. FLORIDA BAR v. WOHL AND WITNESS INDUCEMENT AGREEMENTS IN CIVIL CASES

In Wohl, the Florida Bar alleged that one of its members, Edward H. Wohl, violated Rule 4-3.4(b) of the Rules Regulating the Florida Bar.7 Rule 4-3.4(b) reads, "A lawyer shall not fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness."8 In this case, Wohl faced disciplinary action for his earlier representation of Bruce Winston in a heated dispute with Winston's brother over their mother's estate, which included substantial assets from the estate of their father, a well-known jeweler.9 In an effort to obtain more information about the estate and to better understand the business practices of his father's company, Winston enlisted Katherine Kerr, a one-time employee of the family's diamond business.10

Wohl assisted in drafting and negotiating an agreement between Winston and Kerr, whereby Kerr would provide "assistance" to Winston.11 In return, Kerr would receive $25,000 for her first fifty hours of assistance, a "bonus" between $100,000 and $1,000,000, depending on the "usefulness of the information provided," and $500 per hour for any additional assistance.12 The "bonus" would be paid only after a "culmination event" in which Winston received some relief from his brother.13

Although Wohl asserted at his disciplinary hearing that he did not expect Kerr to testify in the estate litigation, Kerr ultimately testified at depositions and was also eventually listed as a possible witness.14 As a result, the referee at Wohl's disciplinary hearing concluded that Kerr was a fact witness, because she provided factual information that she had obtained while working at the family business.15

At the disciplinary hearing, the referee concluded that the agreement between Winston and Kerr was an impermissible inducement to a witness, especially given the agreement's "bonus" provision.16 The referee found that the agreement, which allowed Kerr to recover the bonus only if Winston was successful in his estate dispute, provided too much temptation for the witness to offer untruthful information.17 According to the referee, such an arrangement represented "the very heart of the evil sought to be avoided" by Rule 4-3.4(b).18 By participating in the formation and negotiation of the agreement between his client and Kerr, Wohl offered an inducement to a witness and, therefore, violated Rule 4-3.4(b).19 As a result, the referee recommended admonishing Wohl for minor misconduct and placing him on probation for one year.20