The following document, submitted to CLE certifying authorities in over 20 states, resulted in certification for both CLE and Ethics credits.

Legal and Ethical Considerations for Attorneys

By The Managing Partners of III, LLC

To many who should know better, the skills of interviewing and elicitation are synonymous. In fact, they are in many ways extremes of one another. When interwoven properly, however, they are seamless and the adroit practitioner is capable of successfully moving back and forth between the two without the subject of an interview realizing it. Many professionals, failing to recognize the difference, approach these separate skills identically, failing to do either very well. The ability to be successful in gaining the truth, and seamless in the execution of the techniques, requires an in-depth understanding of both skills and significant practice in each.

 Unfortunately, many of those who are less than adept at doing so are in professions such as law, where the art of communication -- including interviewing and elicitation -- is supposedly a key skill. Just as unfortunate is the fact that few professional educational institutions, including law schools, provide any semblance of training in this critical area, leaving the student to learn from those whom they chose to emulate, or not learn at all. This haphazard learning process is neither effective or defendable.

In the preamble to the American Bar Association's model for Rules of Professional Conduct (Model RPC), there are several key sentences and phrases that relate directly to the issues of ethical interviewing and ethical elicitation. The opening line reads, "A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice." It later says, "As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others." Further on it directs that, "In all professional functions a lawyer should be competent, prompt, and diligent."

Since interviewing and elicitation are critical skills for an attorney, this document mandates that he not only be proficient in the legal skills but also in his ability to interview and elicit, and just as importantly, he must do them in an honest, or ethical way. Ethics is the cornerstone of International Interviewing and Interrogation's (III) Behavior Assessment and Ethical Elicitation Course for Attorneys. Our training provides an effective and ethical methodology for gathering the most accurate and factual information possible, whether it is in an interview, an elicitation, or a combination of the two. The course also makes clear to the participant what the differences are and the distinct approach to each. Unethical conduct in garnering information from participants in the legal system is not uncommon.

As officers of the court and legal representatives of clients, a binding obligation, both legally and ethically, to help the court seek the truth, is assumed by all attorneys. In their frustration from attempting to get at the truth or assist their client, attorneys, at times, resort to unethical or unacceptable practices in the eyes of both the court and the ABA. Such practices as coercive manipulation, overt threats, and/or bad faith promises subvert the legal system and violate professional standards of conduct.

This course is designed to help those who strive to be ethical improve their skills and enable them to serve their clients and the judicial system more effectively. Lawyers traditionally receive no formal or comprehensive training in proper interviewing techniques or the effective elicitation of the truth. The closest most come are in direct and cross examinations in law school moot court. In the former, student attorneys are merely following a script prepared by themselves and the witness designed to provide information to the court in a light most favorable to their side of this adversarial hearing. In the latter, they are seeking to discredit or confuse the witness, or at least make the witness appear less credible to the judge and/or jury. In either case, these are artificial situations that ill prepare an attorney for an effective one on one interview or elicitation designed to determine the truth prior to a court proceeding. For too many, though, these are the only skill building exercises they receive in this area. After graduation, they attempt to modify these techniques and apply them as they begin to interview clients, prospective witnesses, and experts in the "real world." This practice is akin to doctors learning to operate on frogs in medical school, then modifying the procedure to humans after they graduate.

While this may be an extreme analogy, the results translate the same way -- they can be disastrous. To compound the problem, because the combination of effective interviewing and elicitation skills are so rare, the lack of them routinely goes unnoticed because there is no correct model with which to compare. To offset this void, III's training course provides the student with the learned skills to identify deceptive and/or unethical behavior. The training then teaches the attorney to effectively and ethically elicit information during the normal course of their everyday practice or at any point in the legal and/or judicial process.

Both the training and learned skills emanating from our course are consistent with the canons of ethics in the practice of law. Specifically, III's training identifies those practices that extend beyond ethical boundaries, demonstrating pitfalls to avoid. As noted in the Model RPC Scope section, "The Rules of Professional Conduct are rules of reasonÖThe Rules simply provide a framework for the ethical practice of law." We will do the same with ethical interviewing and ethical elicitation -- provide a framework to perform both effectively and ethically.  In the training segment on Ethical Interviewing, the attorney is given a framework and a strategy for conducting proper and ethical interviews. This offers an effective and methodical approach beyond the common, often quoted, and inadequate instructions to "just gather the who, what, when, where, how, and why."

If the interviewer fails to have a strategy and a goal going into an interview, he will frequently miss what should be obvious follow-up questions that can change the entire focus of the interview. While no one ever believes this can happen to them, it is an all too frequent occurrence, even with experienced interviewers. The sad part is that the interviewer will leave the session not  realizing his failure.

One highly publicized failing will be vividly demonstrated during the segment of the course which analyzes the O. J. Simpson interview conducted by LAPD homicide detectives. Also included in the ethical interviewing segment is a discussion on the proper use of different types of questions and how the improper use of some of them may create a case for unethical behavior on the part of an attorney. A simple example is the improper use of a negative question. When certain negative questions are posed by counsel to a criminal defendant who is clearly guilty, they could easily be construed as encouragement or even instructions for the client to commit perjury if he ultimately testifies, e.g., "You didn't rob that store, did you?" Another example is the simple, "You've never committed a crime, have you?" asked of a potential witness. These questions demonstratively indicate to the recipient that the interviewer expects a negative answer, not necessarily a truthful one. In the first example, when an affirmative answer is clearly the truthful one and both parties know it, it could be interpreted as instructions, rather than a legitimate question. If the attorney consciously asks the question this way on purpose, then he must be prepared to deal with any consequences which arise from it. In the second example, it may also be taken as instructions, not only causing potential perjury later on, but also embarrassment when the opposition has done a better job of preparation and the truth comes out.

Unfortunately, many interviewers don't realize the impact this type of  question has on the response of the interviewee, or if they do, aren't cognizant of how often and under what circumstances they use it, thus unknowingly opening themselves to questions of unethical conduct, in addition to making their interview ineffective. Either way, the attorney is not ethically or effectively representing his client. For the times when a more adversarial role is indicated, this course teaches how best to effectively reach bottom-line truth through an ethical elicitation. In representing a client's best interest within the framework of the legal system, it is an ethical imperative that the attorney effectively obtain all pertinent information which is factually accurate from the client and witnesses alike.

While in criminal cases a defense attorney may not wish to know the "truth" from a client for fear of later running afoul of other ethical rules, in civil matters it is imperative to be operating with the truth to effectively and ethically represent the client. When attorneys are attempting to elicit the truth from a reluctant interviewee (defined as anyone who wishes to withhold or slant the truth), it is easy to resort to the methods used in cross examinations. When done outside the courtroom, however, without the constraints of an opposing attorney or the trial judge, it is easy to push past the limits of propriety, chancing a violation of the Model RPC Rule 4.4 - Respect for Rights of Third Persons, which states, "In representing a client, a lawyer shall not: (a) use means that have no substantial purpose other than to embarrass, delay, or burden a third personÖ(b) use methods of obtaining evidence that violate the legal rights of such a personÖ" Not only is this conduct unethical, it is seldom effective.

Sadly, television shows and the occasionally highly publicized abuses by police have given the word interrogation a bad name. The truth is, though, that there are many people involved as clients and witnesses in various legal proceedings who, for their own reasons, are not inclined to tell the truth. While the perception of the public may be that these untruthful persons are mostly criminal defendants, nothing could be further from the truth. Given the right circumstances, everyone lies if they believe it is in their best interest. The only way to persuade them to provide factual information is to convince them that it is in their best interest to do so. While this may sound like a simplistic view, few professionals have the proper training to attempt elicitation in a methodical and ethical way that significantly enhances their chances for success.

Recipients of III's training will come away from the course far better equipped to accomplish the critical goal of obtaining the truth from a reluctant person in an ethical manner. It is easy to recognize and acknowledge that the skills of interviewing and elicitation are critical to the successful practice of law. Too often these skills are mistakenly taken for granted and just as often, shortcomings in these skills are not recognized by others who may otherwise be in a position to detect and correct deficiencies. This leads to many of the stereotypical approaches to "interrogation" which are outlined in the article by the "Legion of Doom" hackers that is contained in section six of III's student manual, and the resultant passing of these improper techniques to yet another generation of otherwise enlightened professionals.

III hopes to stem the perpetuation of these misguided and ineffective methods by providing a legal, ethical, and highly effective methodology of obtaining the truth while respecting the dignity of the person being interviewed, in keeping with the letter, the spirit, and the intent of the ABA model for Rules of Professional Conduct.

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