Can a lawyer talk to a witness on a trial break?

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Can A Lawyer Talk To Their Client During An Illinois Divorce Hearing Or Trial?

Can a lawyer talk to a witness on a trial break?

In an Illinois divorce hearing or trial, you are counting on your lawyer to guide you through the process. Your lawyer can discuss anything with you under the full protection of attorney-client privilege throughout your Illinois divorce. But once testimony has started (especially if it’s your testimony) an Illinois judge may say to the lawyer “no further discussion with your client until the testimony is complete.”

So, even in a multi-day trial, a judge will expect a lawyer not to discuss their client’s divorce case with their client if the testimony is ongoing before and after lunch and from one day to the next.

A witness discussing a matter with a lawyer just before or during testimony raises eyebrows. What could the lawyer be saying to the witness beyond “just tell the truth?”

Any conversation designed to manipulate testimony is encouraging a witness to provide false evidence…and that’s a big problem.

“A lawyer shall not…counsel or assist a witness to testify falsely” Ill. Sup. Ct. R. 3.4(b)

“[A]n attorney who procures false evidence, knowing it to be false, with the intention of deceiving the court and thus interfering with the due administration of justice, is … guilty of contempt of court.” Beattie v. People, 33 Ill. App. 651 (1889)

Wait. Isn’t this America? Don’t you have a right to speak with your lawyer? Even in a divorce case?

In criminal cases, you absolutely have the right to talk to your attorney at any point during a trial even if the inability to talk to your attorney doesn’t really hurt/prejudice you.

“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 US 60 – Supreme Court 1942

In civil cases like divorce, that rule of an absolute right to an attorney does not apply.

“[T]he right of a party to counsel in a civil case is quite divergent from the right of defendant in a criminal prosecution”  Stocker Hinge Mfg. Co. v. DARNEL INDUS., 377 NE 2d 1125 – Ill: Appellate Court, 1st Dist. 1978

“[T]he rule for civil cases that is [not the same as] in criminal cases, which holds that the right of an accused to discuss his case with his counsel is so fundamental that it is absolute and no showing of actual prejudice is necessary where it has been denied.“ Hill v. Ben Franklin Savings & Loan Ass’n, 531 NE 2d 1089 – Ill: Appellate Court, 2nd Dist. 1988

This issue of attorney-witness communication is especially important during our age of Zoom hearings when a lawyer can secretly text a witness during testimony. Furtive glances are often the only clue that attorney-witness communication is occurring.

Communication with a witness during testimony is pointless anyway if you have a good lawyer. A seasoned trial attorney can simply clarify and/or rehabilitate that witness’s testimony on cross-examination or redirect.

An Illinois divorce court does not have the unlimited right to keep a client and their lawyer from speaking with each other. Sooner or later, an attorney and their client have to be allowed to speak (presumably after testimony is complete).

“There may possibly be circumstances in civil cases in which extreme orders by a trial court regarding communication between lawyer and client would result in prejudicial error.” Stocker Hinge Mfg. Co. v. DARNEL INDUS., 377 NE 2d 1125 – Ill: Appellate Court, 1st Dist. 1978

The rule that conference between attorneys and clients may not occur during testimony also applies to depositions.

“Because a deposition generally proceeds as at trial, courts have held that once a deposition starts, counsel has no right to confer during the deposition.” LM INSURANCE CORP. v. ACEO, INC., Dist. Court, ND Illinois 2011

Attorneys and their clients regularly discuss matters during deposition breaks…but they shouldn’t. There is no judge supervising the deposition. The only way to assure attorneys are not discussing the case with their client is to not provide a break or (more realistically) to allow for very brief breaks.

In reality, your divorce attorney should sufficiently prepare you in advance for court that your attorney would never need to interrupt testimony to discuss something with you. It is perfectly ethical and normal for an attorney to provide his client with the questions for direct examination in advance. The important thing is that the testimony be the truth!

If you are looking for a prepared and ethical attorney who also enjoys the intricacies of Illinois law, contact my Chicago family law firm.