ABA Formal Opinion on Misconduct in Virtual Depositions

Maryland’s Proposed Rule 5-702
November 15, 2023
Is it Spoliation to Bury a Dead Cow?
November 21, 2023

My legal ethics professor said that the best thing is to do the right thing for the right reason.  The next best thing is to do the right thing for the wrong reason.

Surreptitiously feeding your client answers to deposition question in a remote deposition should be avoided because it is wrong.  And, you’re likely to get caught.  See Managing partner sanctioned for ‘feeding’ answers in Zoom deposition – Maryland Daily Record (thedailyrecord.com)(Nov. 14, 2023)(“the Massachusetts Board of Bar Overseers has issued a public reprimand to a Boston managing partner who was overheard ‘feeding’ answers to his client during a remote deposition.”).

The Massachusetts Memorandum of Board Decision, PR-2023-12.pdf (massbbo.org), states: “This case is unprecedented. There is no prior disciplinary case in Massachusetts based solely on a lawyer coaching a witness during a deposition.” The Board wrote:

During his client’s deposition, which took place remotely, the respondent repeatedly coached his witness on answering questions. The respondent and his client were seated in the same conference room, both wearing masks over the objection of the lawyer who took the deposition from another location. During the fifth hour the deposition, opposing counsel overheard the respondent provide an answer to the client, which she repeated.

Bar Counsel recognized that opposing counsel’s conduct was “bordering on uncivil” and that the deponent had mental and physical health challenges.

However: “Judge Talwani noted that the respondent had taken advantage of the remote proceeding and his interruptions were not a momentary and isolated incident or a lapse in judgment.”

The Massachusetts Board cited Rules 3.4(c), 8.4(d), and 8.4(h) of the Rules of Professional Conduct, as well as Fed.R.Civ.P. 30(d).  It also noted ABA Formal Op. 508 (Aug. 5, 2023), on witness coaching.

The ABA ethics opinion states: “Technology-driven efforts to influence in-progress witness testimony—signaling or messaging a witness testifying remotely, out of the sight of opposing counsel and the adjudicative officer—has generated increased scrutiny.”  The ABA adds: “With remote proceedings having become commonplace, the sense that brazen witness-coaching behaviors are occurring or could easily occur has been validated by a number of reported instances of misconduct.”

In the immortal words of Yogi Berra, it is like déjà vu all over again.  I have blogged on a number of other similar instances: Remote Deposition Misconduct – Again – With Novel Cure – Again (Jul. 14, 2022); Ethics: More Remote Misconduct (Apr. 10, 2022), Ethics: Misconduct in Remote Trial (Feb. 5 2022), and Ethics: Misconduct in Remote Depositions (Nov. 29, 2021).

The Massachusetts Bar Opinion states: “Bar counsel has brought to our attention two cases from other states where lawyers were suspended for witness coaching, although both involved aggravating factors.” It described those decisions.

Based on the unique facts presented, and the absence of aggravating factors, the Massachusetts decision imposed only a public reprimand.  However, the Board added: “We emphasize these circumstances to alert the bar that future cases of deposition misconduct, and all forms of discovery abuse, may not be viewed as indulgently as this case.”

ABA Formal Op. 508 (Aug. 5, 2023), addresses “The Ethics of Witness Preparation.”  However, it also addresses remote or virtual testimony:

Counseling a witness to give false testimony or assisting a witness in offering false testimony, for example, is a violation of at least Model Rule 3.4(b). The task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously ‘coach’ witnesses in new and ethically problematic ways. [emphasis added].

The ABA formal ethics opinion adds that lawyers “must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.”  It states that assisting a client in offering false testimony violates the Model Rules of Professional Conduct and adds:  “Instigating a witness to lie can occur in ways beyond an outright instruction to fabricate testimony.”

The ABA opinion states what should be obvious:

Winking at a witness during trial testimony, kicking a deponent under the table, or passing notes or whispering to a witness mid-testimony are classic examples of efforts to improperly influence a witness’s in-progress testimony. Other more subtle types of signaling also implicate ethical obligations and at times result in court-ordered sanctions. A familiar type of covert coaching is the so-called “speaking objection,” or “suggestive objection.”

When it comes to misconduct in remote settings, it is valuable to consider the entire ABA analysis (footnotes are omitted):

The use of remote communications platforms and other technologies in adjudicative proceedings and depositions, provides opportunities and temptations for lawyers to surreptitiously tell or signal witnesses what to say or not say in the proceedings of a tribunal.

This is not a novel phenomenon. When the ubiquity of cell phone technology made it convenient to communicate with another person covertly, some lawyers began to abuse it. In a troubling example of text-message-based coaching, a Florida lawyer, in a worker’s compensation case, was disciplined for sending text messages to a witness regarding the witness’s testimony while a deposition was in progress, which texts included coaching and specific directions on how to respond to questions.  Similarly, it is improper for a lawyer to text a witness who is testifying at trial.

The logistics of trials and depositions using remote meeting technologies are such that a lawyer and a witness may be in one location, with the opposing lawyer at another location, and, in trial situations, an adjudicative officer in yet another. In these circumstances, many things can happen that cannot readily be monitored by participants in the other remote locations.  It would be relatively easy for an off-camera lawyer or someone acting at the lawyer’s behest to signal a witness with undetectable winks, nods, thumbs up or down, passed notes, or the like. Surreptitious off-camera activities such as texting the witness or other real-time electronic messaging are possible and easily done.

Allegations of misconduct in remote proceedings have been addressed by regulators and the judiciary. A lawyer has been disciplined for providing a client with answers to questions while off camera during a remote proceeding.  Another example involved a lawyer representing the defendant in a federal lawsuit, who, during a remote deposition, was overheard by opposing counsel providing the client with an answer to a question, after which the client repeated the answer as the client’s own. After reviewing the deposition footage, opposing counsel found additional circumstances where the lawyer had provided the client with answers to questions while off-camera during the remote deposition.  Lawyers have a duty to comply with the rules of professional conduct and rules of court that prohibit witness coaching, in all testimonial contexts regardless of the format of the deposition, hearing, or trial. Remote coaching, like its historical antecedents, puts the perpetrating lawyer at risk of adjudicative rebukes and court-ordered sanctions, as well as disciplinary sanctions. [emphasis added].

The ABA’s “systemic precautions for addressing such misconduct” are also well worth reading. One of them – inclusion of protocols in proposed discovery plans – may be especially valuable.

In summary, the ABA wrote: “The use of technology in the profession, particularly remote-meeting technologies, presents distinct opportunities for surreptitious witness coaching. But the Model Rules that constrain unethical witness coaching extend to all testimonial contexts, regardless of format. It is prudent for lawyers and adjudicators to consider prophylactic measures designed for use in remote proceedings to prevent and detect incidences of unethical coaching conduct.”

Discovery Guideline 6(f) of the United States District Court for the District of Maryland states:  “While the interrogation of the deponent is in progress, neither an attorney nor the deponent should initiate a private conversation except for the purpose of determining whether a privilege should be asserted. To do so otherwise is presumptively improper.”

Guideline 6 prohibits speaking objections.  Further, Guideline 6(g) prohibits substantive discussion about prior testimony during deposition breaks, except as to privilege. Guideline 8 governs “making a record of improper conduct during a deposition” and requires the court reporter to record any such request.

The impact of the Massachusetts coaching was not confined to the public reprimand of the attorney.

The underlying Massachusetts case, Barksdale School Portraits, LL v. Williams, 339 F.R.D. 341 (D. Mass. 2021), is discussed in more detail in Remote Deposition Misconduct – Again – With Novel Cure – Again. The court permitted the plaintiffs to play a video at trial of the defendant repeating her counsel’s answers to enable a jury to assess her credibility.  A February 3, 2022, docket entry reflects that a settlement agreement led to dismissal of the action.  Docket 1:20-cv-11393.

The best thing is to do the right thing for the right reason.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

This blog was also posted at Maryland State Bar Association – MSBA

UPDATE:  See Esquire Deposition Solutions, LLC, Preparation Is Key to Stopping Witness Coaching During Remote Depositions | Esquire Deposition Solutions, LLC – JDSupra.