Two state bars have suspended attorneys for conduct during virtual proceedings deemed dishonest and prejudicial to the administration of justice. In both circumstances, the attorneys represented their clients in remote proceedings, coaching the clients on how to answer questions through chat and text messages. ABA Litigation Section leaders conclude that each attorney’s conduct was unethical and that the sanctions were appropriate. It is not yet clear whether ethical lapses in remote proceedings will become a trend in a post-COVID environment or whether these cases were simply outliers.
October 12, 2022 Feature
Sanctions for Spoon-Feeding Answers to Deposing Witness
Two attorneys suspended for surreptitiously messaging testifying clients
By Kelso L. Anderson
Witness Coaching via Text
In Florida Bar v. James, an attorney represented an employer and its employees in a worker compensation case. A witness who worked for the employer was deposed via telephone, and all parties, including counsel, attended via telephone from separate locations. While the claimant’s counsel was questioning the witness, the now-suspended attorney for the employer sent text messages to the witness regarding her testimony. The text messages included coaching and advice about how the witness should answer the claimant’s counsel’s questions.
Claimant’s counsel heard typing and asked the employer’s attorney whether he was texting the witness during the deposition. The attorney denied sending any messages to the witness, falsely representing that he was texting his daughter. After a break in the deposition and after claimant’s counsel resumed questioning of the witness, the employer’s attorney inadvertently sent texts to claimant’s counsel that were meant for the witness. The texts read as follows:
11:53 a.m.: Just say it anyway
11:53 a.m.: Just say 03/28
11:54 a.m.: In addition to the 03/28/2018 email containing the signed release I show...
11:55 a.m.: Don't give an absolute answer
11:55 a.m.: All I can see at this time but I cannot rule out existence
11:55 a.m.: It's a trap
11:56 a.m.: Then say that is my best answer at this time
As soon as the claimant’s counsel realized that her opposing counsel was coaching the witness, she concluded the deposition and filed motions for in-camera inspection of the attorney’s text messages. The attorney produced two pages of text messages. In a subsequent proceeding, a judge ordered the attorney to produce the text messages he claimed to have sent to his daughter during the deposition. The attorney was unable to produce said text messages, but instead of admitting that the messages did not exist, he blamed technological incompetence.
Based on these facts, a judge concluded that the attorney violated Florida Bar Rule 4-3.4(a), which, among other things, prohibits a lawyer from “unlawfully obstructing another party’s access to evidence.” That Florida rule is analogous to ABA Model Rule of Professional Conduct 3.4, which also prohibits the same conduct. Based on the attorney’s violation of Rule 4-3.4(a), the judge suspended his law license for 30 days. The judge concluded, however, that the attorney did not violate Florida Bar Rule 4-8.4, which is analogous to ABA Model Rule of Professional Conduct 8.4, and prohibits a lawyer from engaging in conduct that is “prejudicial to the administration of justice.”
On appeal, the Florida Supreme Court rejected the lower court’s conclusion that the attorney’s conduct was not prejudicial to the administration of justice in violation of Rule 4-8.4. The court looked to its own precedent in Florida Bar v. Feinberg—a case in which it upheld another attorney’s suspension for dishonest conduct—to support its position that this attorney’s dishonesty amounted to prejudicial conduct. The court also tripled the attorney’s bar suspension from 30 days to 91 days. In a separate opinion, concurring in part and dissenting in part, Justice Alan Lawson wrote that he agreed with the majority that the attorney’s conduct violated Rule 4-8.4, but noted that he would have deferred to the trial judge’s view of the record and would have left the attorney’s original 30-day suspension untouched.
[W]e may see an increase in bar complaints or potentially even claims against lawyers stemming from work that they did in a virtual setting during the pandemic.”
Witness Coaching via Computer Chat
Similarly, the Arizona State Bar concluded in State Bar of Arizona v. Claridge that an attorney violated state ethics rules by coaching a client during a remote divorce proceeding. The attorney represented the wife at trial, which was conducted via video using GoToMeeting, a web-based video platform. The husband appeared pro se. During trial, the attorney used GoToMeeting’s chat feature to advise his client how to answer questions during cross-examination. The trial court was unaware of the attorney’s conduct during the trial but subsequently learned what had happened by reviewing the chat transcript. The court referred the attorney to the state bar for disciplinary action.
The attorney agreed he violated state ethics rules and further agreed to a 60-day suspension from the practice of law. Among the state ethics rules at issue were Arizona Ethics Rule (ER) 8.4(d) and ER 3.4(a), which are analogous to ABA Model Rules 8.4(d) and 3.4, respectively.
Suspension Appropriate for Unethical Conduct
Although James and Claridge involved different facts, Litigation Section leaders agree that the attorneys in both cases committed ethics violations. “The punishment does fit the crime here,” affirms Michael S. LeBoff, Newport Beach, CA, cochair of the Section’s Professional Liability Litigation Committee. “These attorneys knowingly engaged in unethical conduct by improperly coaching the witnesses. State bars cannot look the other way when this occurs,” LeBoff asserts.
John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee, also believes that the level of punishment was appropriate in these cases. “It is not for me to judge, of course, but the Arizona decision was by consent, and the Florida decision turned on a precedent where less egregious conduct resulted in a 91-day suspension,” Barkett reiterates.
Ethical Guardrails Post-COVID
LeBoff believes that most attorneys are ethical and maintain high standards during remote proceedings. However, he observes, “a small number of attorneys have taken advantage of remote proceedings to bend or break the ethical rules.” Constant technological changes are inevitable, LeBoff continues, but lawyers must be stewards of ethical culture. “Law firms need to be vigilant in instilling a culture of ethics and respect for the profession,” he emphasizes. “That has become a greater challenge for law firm leaders as more attorneys are working remotely.”
Echoing a similar sentiment, Alanna G. Clair, Washington, DC, cochair of the Attorneys’ Liability Subcommittee of the Section’s Professional Liability Litigation Committee, states she trusts that most lawyers will adhere to proper ethical standards, even in a remote environment. However, she wonders whether there may be an unanticipated impact of the COVID-19 pandemic, which forced a dramatic increase in remote proceedings in recent years.
“It’s interesting that both [James and Claridge] involved conduct that pre-dated the pandemic,” Clair observes. “But I think we may see an increase in bar complaints, or potentially even claims against lawyers, stemming from work that they did in a virtual setting during the pandemic.” Clair posits that lawyers “may face accusations that they failed to meet the standard of care in providing counsel in a remote setting, or they may be accused of ethical misconduct. There’s also a risk that lawyers could be accused of not meeting their duty of competence to understand technology,” she speculates.
Barkett remains optimistic that the legal profession will withstand many of the challenges brought by remote proceedings because of guardrails that existed prior to the pandemic. “There are protocols that have been developed to ensure that a witness is not communicating with counsel when considering an answer to a question,” notes Barkett. “For example, counsel should ensure the witness does not have a cell phone or other device present that could be used for communications,” he details. “Thoughtful lawyers would never run the risk of running afoul of a court order establishing these protocols.”
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Resources
- Fla. Bar v. James, 329 So.3d 108 (Fla. Nov. 18, 2021).
- Fla. Bar v. Feinberg, No. SC93165 (Fla. June 1, 2000).
- State Bar of Ariz. v. Claridge, No. 20-2214 (Ariz. Jan. 21, 2022).
- Hon. Mark Drummond, “Adjusting the Sails: The Pandemic Effect on Remote Depositions,” Litigation News (June 23, 2021).
- Mary A. Salamone & Michelle Wells, “Entering a New Era—Taking and Defending Remote Depositions,” Forum on Construction Law (Dec. 11, 2020).
- Stephanie Richards, “Avoiding Virtual Deposition Disasters,” Solo & Small Firm (Oct. 7, 2020).
- Fla. Bar R. 4-3.4(a): Fairness to Opposing Party and Counsel.
- Fla. Bar R. 4-8.4: Reporting Professional Misconduct.
- Ariz. Ethics R. Sup. Ct. R. 8.4: Misconduct.
- Ariz. Ethics R. Prof’l Conduct 3.4: Fairness to Opposing Party and Counsel.
- Model R. Prof’l Conduct 3.4: Fairness to Opposing Party & Counsel.
- Model R. Prof’l Conduct 8.4: Misconduct.
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