Summary of Professional Conduct Rule 4.04 on Communication with Witnesses Giving Evidence

RULE 4.04

Communicating With Witnesses Giving Testimony

Witness Called By You or                    Witness Called by Party Opposite

Sympathetic to You

During              Yes, on matters not yet covered            Yes

Chief

Between           No                                                       N/A

Chief and

Cross

During              No                                                       Yes

Cross

Between           No                                                       N/A

Cross and

ReExam

During              N/A                                                     Yes

ReExam

                                               

This is a simplification of the Rule and the precise text should be reviewed for greater certainty.  To simplify, once evidence has been called it is better not to speak to sympathetic witnesses about the evidence.  Discussions with unsympathetic witnesses are proper. 

The judicial officer may make exceptions to the Rule and such an exception should be sought if communication is necessary – for example if a hearing is to be adjourned for a lengthy period during a cross-examination of your client.