C. Restrictions On Advocacy In Court Proceedings, Cal. Prac. Guide Prof. Resp. Ch.

8-C

Cal. Prac. Guide Prof. Resp. Ch. 8-C

California Practice Guide: Professional Responsibility
Paul W. Vapnek, Mark L. Tuft, Ellen R. Peck and Justice Howard B. Wiener (Ret.)
Chapter 8. Advocacy And Representation
C. Restrictions On Advocacy In Court Proceedings

4. [8:212] Prohibition on Degrading or Harassing Adverse Witnesses: Lawyers frequently attempt to

impeach witnesses whose testimony is harmful by discrediting their honor or reputation. Ethical issues arise
where the discrediting facts bear no relationship to the truthfulness of the testimony.
For example, Witness testifies Client ran a red light. Clients Lawyer wants to show Witness is a prostitute even
though this fact has nothing to do with Witnesss observation of the accident.
Because lawyers must not advance any fact prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which he or she is charged, it is improper to use cross-examination
solely for the purpose of degrading or harassing a witness and prejudicing the jury. [See Bus. & Prof.C.
6068(f) (emphasis added)]
[8:213] Caution: A portion of Bus. & Prof.C. 6068(f) has been held unconstitutional (see 8:572). It is
unclear whether the balance of the statute relating to treatment of witnesses remains effective.
Comment: As a practical matter, the real limitation on an attorneys hostile treatment of adverse witnesses is
the trial courts power to limit or prohibit such examination pursuant to its discretion under Ev.C. 765
(court shall exercise reasonable control over interrogation to protect the witness from undue harassment or
embarrassment).
[8:213.1213.4] Reserved.
a. Application
[8:213.5] While representing Client in an unlawful detainer action, Attorney claimed opposing party
sexually harassed Client. Attorney was disciplined under Bus. & Prof.C. 6068(f), because Attorney knew
the sexual harassment allegation against opposing party was untrue. [Matter of Wyshak (Rev.Dept. 1999) 4
Cal. State Bar Ct.Rptr. 70, 7778, 81; compare Matter of Torres (Rev.Dept. 2000) 4 Cal. State Bar Ct.Rptr.
138, 144145, 148149no attorney culpability for intimating in deposition and discovery directed to
former client in former clients malpractice action against attorney that attorney and former client had a
sexual relationship]
b. [8:214] CompareABA Model Rule: The ABA Model Rules provide that a lawyer shall not use means
that have no substantial purpose other than to embarrass, delay, or burden a third party ... [ABA Model Rule
4.4; see also ABA Model Code DR 7106(C)(2)precluding counsel from asking any question that he has
no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other
person; DR 7102(A)(1)precluding counsel from taking any other action on behalf of his client when he
knows or when it is obvious that such action would serve merely to harass or maliciously injure another]
2012 Thomson Reuters. No claim to original U.S. Government Works.

C. Restrictions On Advocacy In Court Proceedings, Cal. Prac. Guide Prof. Resp. Ch. 8-C

c. [8:215] Civil cases: The duty to provide zealous representation gives counsel considerable leeway in
cross-examining hostile witnesses and in bringing out matters that may affect their credibility, even when
they appear to be telling the truth. Indeed, lawyers may be required by the justice of the cause (Bus. &
Prof.C. 6068(f)) to prove matters of impeachment.
=> [8:216] PRACTICE POINTER: However, there are often good tactical reasons for not doing so! E.g.,
if the witness is sympathetic, jurors may resent your attacks on his or her credibility and your failed
impeachment may exaggerate the importance of the testimony.
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(2012)End of Document

2012 Thomson Reuters. No claim to original U.S.

Government Works.

2012 Thomson Reuters. No claim to original U.S. Government Works.