25. Integrity of evidence - two witnesses together

    1. A solicitor must not confer with, or condone another solicitor conferring with, more than one lay witness (including a party or client) at the same time:
      1. about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing; and
      2. where such conferral could affect evidence to be given by any of those witnesses,
        unless the solicitor believes on reasonable grounds that special circumstances require such a conference.
    2. A solicitor will not have breached Rule 25.1 by conferring with, or condoning another solicitor conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.


Commentary

25.1 One witness at a time

The purpose of Rule 25.1 is to avoid the risk of evidence being contaminated through collusion.76 Several recent cases illustrate the nature of the rule and the consequences of its breach:

  • Witnesses should give evidence which is 'the product of their own independent knowledge and recollection unaffected by the views or evidence of others': Legal Profession Complaints Committee v Caine [2010] WASAT 178, [143] in which the solicitor was found guilty of unsatisfactory professional conduct by encouraging a witness to confer with others to harmonise their evidence.
  • In talking with more than one witness, a solicitor may be intending to ensure witnesses 'all speak with one voice,' thereby affecting the integrity of the process: Day v Perisher Blue (2005) 62 NSWLR 731, 746 ('Day'). The court may set aside the verdict and judgment and order a new trial. In Day, the judgement and appeal papers were referred to the Legal Services Commissioner: see Day v Perisher Blue Pty Ltd [No 2] [2005] NSWCA 125.
  • To constitute a breach, there must be a conference between two witnesses and the solicitor, not one witness incidentally over-hearing a conversation between another and a solicitor. The rule is to avoid the 'vice' of two or more witnesses 'conferring about contentious issues in the proceedings' and being 'encouraged to modify, or be at risk of modifying, or changing, the evidence that they might give': Legal Services Commissioner v Hansen [2008] LPT 7, [26] ('Hansen'). In Hansen, a barrister allegedly conferred with a witness outside his chambers whilst the accused was 'within earshot.' The charge was ultimately dismissed, as the Tribunal was not satisfied that the barrister had conferred with 'more than one lay witness at a time.'
    For the same reason, a witness ought not to be shown another witness’ statement, although specific elements may be put to them for comment.77

25.2 Exceptions

A solicitor does not breach Rule 25.1 by conferring with more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise: Rule 25.2. 

Expert witnesses. Conferring with two or more expert witnesses to ensure a "common line" compromises the independence of those witnesses. Their duty is to assist the court on the subject matter and test the evidence and the information relied upon. However, when the expert witnesses are in a court-ordered conclave to produce a joint report on relevant issues, a solicitor may confer with them on the process of that conclave.

76 Dal Pont, above n 1, 563.

77 Kylie Downes S.C., 'Witness Wisdom' (2012) 32 (11) Proctor 6.