Ethics: Misconduct in Remote Depositions

Sanctions: Litigant Recently Testified That He Did Not Know What a “Litigation Hold” Was
November 28, 2021
Terminating Sanctions Reversed After Oral Litigation Hold Goes Awry
November 30, 2021

This blog addresses two remote deposition issues: 1) coaching by text messages; and, 2) coaching behind a COVID face mask.

“A Florida lawyer has been suspended for 91 days for texting advice to a witness during a phone deposition and then failing to come clean when questioned by the opposing counsel and a judge.”  D. Weiss, “Lawyer is suspended for texting witness during phone deposition; how did opposing counsel find out?” (Amer. Bar Ass’n. Nov. 22, 2021).

During a telephone deposition, the questioning attorney heard typing sounds.  He asked the opposing attorney whether they were texting and the opposing attorney said that it was a text from his daughter.

The attorney asked that texting stop and the opposing attorney agreed.  Shortly after that, the opposing attorney mistakenly sent a series of texts to the questioning lawyer.

These are the misdirected texts:

“11:53 a.m. (James): Just say it anyway

11:53 a.m. (James): Just say 03/28

11:54 a.m. (James): In addition to the 03/28/2018 email containing the signed release I show …

11:55 a.m. (James): Don’t give an absolute answer

11:55 a.m. (James): All I can see at this time but I cannot rule out existence

11:55 a.m. (James): It’s a trap

11:56 a.m. (James): Then say that is my best answer at this time.”

The ABA reports that “[i]n disciplinary proceedings, James said workers’ compensation proceedings are informal, and he wanted to help the witness because Villaverde kept talking over the witness or interrupting with objections.”

The article states that the Florida Supreme Court found violation of the rule that lawyers may not obstruct access to evidence and the rule banning conduct prejudicial to the administration of justice.  The attorney was suspended.

In the face mask case:

“A Boston lawyer accused of coaching a client at a remote deposition acknowleged [sic] making ‘improper comments’ but told a judge that he’s paid an appropriate price for his conduct and no additional punishment is warranted….  Rosin said he exercised ‘poor judgment’ during the April deposition, when he allegedly told his client how to answer certain questions in an employment dispute. They were masked during the proceeding.

M. Heelan, “Lawyer Argues for No New Sanctions Over Zoom Deposition Misstep” (Bloomberg Nov. 30, 2021) (Emphasis added), describing In re Rosin ,  No. 1:21-mc-91571-LTS (D. Mass.).