An attorney who quietly provided answers to his client during her remote video deposition violated ethics rules, a court has held. In Barksdale School Portraits v. Williams, the court disqualified the defendant’s counsel and referred him to the presiding judge of the district for disciplinary proceedings. However, the court denied the plaintiff’s motion to dismiss the defendant’s defenses and counterclaims as a sanction for the attorney’s misconduct. ABA Litigation Section leaders believe that cases like this one are rare but that attorneys can take steps to avoid these situations.
Providing Answers to a Deponent Is Attorney Misconduct
Like many depositions during the pandemic, the Barksdale deposition took place remotely over video. Defense counsel sat in the same conference room as his client as she testified. Despite the plaintiffs’ objections, they both wore masks during the deposition. Over fifty times, defense counsel used his mask to hide the fact that he was telling his client how to answer questions.
The U.S. District Court for the District of Massachusetts held that there was “little question” that counsel’s aid constituted misconduct because it “plainly frustrated plaintiffs’ rights to a fair examination.” And it held that the fact that defense counsel spoke to his client repeatedly made the misconduct worse because it showed he did not suffer from “a momentary or single lapse of judgment.” It also held that the misconduct was particularly serious because it undermined “the effectiveness of remote deposition proceedings,” upon which the court system has relied heavily during the pandemic.
Although defense counsel admitted offering answers to his client, he argued that sanctions were inappropriate. First, he argued that opposing counsel had also violated discovery rules, and so it would be unfair to only punish one side. But the court refused to apply opposing counsel’s conduct as a mitigating factor. Second, defense counsel claimed that his client always provided truthful answers, even if they followed his prompts. But the court rejected that defense, too, since it assumed that counsel’s “understanding of the facts is authoritative.”
Court Sanctions Attorney, But Not Client
The court sanctioned the attorney by disqualifying him from continuing to participate in the case. It recognized that the sanction was harsh since it denied the defendant the counsel of her choosing and since it carries a reputational stigma. But it did so because allowing him to continue “would suggest a modicum of tolerance for [his] conduct where there is none.” It also referred him to the district’s presiding judge for disciplinary proceedings.
The court declined to punish the defendant directly for repeating her counsel’s answers. The plaintiffs sought to punish her by requesting dismissal of her defenses and counterclaims. Alternatively, they sought to prohibit her from testifying at trial about the subjects for which she used her counsel’s answers and sought an adverse inference against her at trial on those subjects. The court, however, noted that dismissal as a sanction is only appropriate in response to “extreme” misconduct. While the court found the defendant “complicit” in her attorney’s misconduct, it was counsel who was primarily at fault and the client was merely “following her counsel’s lead.” Accordingly, the court found dismissal to be too severe a sanction. And it decided the other proposed sanctions against her would improperly punish her for her counsel’s actions. Instead, 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.
Section Leaders Continue to Trust Video Depositions
The counsel’s misconduct in Barksdale has not deterred Litigation Section leaders from conducting remote depositions. “At least to some degree, Zoom depositions are here to stay,” observes Pilar G. Kraman, Wilmington, DE, cochair of the Section’s The Woman Advocate Committee. She says that the “vast majority of lawyers are ethical and are not going to intentionally obstruct a deposition in this way.” The misconduct in Barksdale is “not something I’ve come across or something I would be concerned about with the lawyers I work with,” explains Joseph V. Schaeffer, Pittsburgh, PA, cochair of the Section’s Pretrial Practice & Discovery Committee.
There are also precautions litigators can take to address possible abuse. One option is to have the court reporter in the same room as the witness and counsel, since “having another person in the room could deter that misconduct,” according to Ashley J. Heilprin, New Orleans, LA, cochair of the Section’s Pretrial Practice & Discovery Committee. And if an attorney observes improper communications, she can “recite the facts on the record during the deposition, and try to get the court involved via telephone,” says Ali Degan, Iselin, NJ, cochair of the Section’s Minority Trial Lawyer Committee.
A less brazen method for lawyers to improperly communicate with witnesses during a deposition is through texting or emailing. One precaution to address that concern is to “agree the chat function is disabled” on the videoconference software, says Kraman. And another is to ask the witness “if they have any other applications open on their computer and to close them if they do,” adds Schaeffer.
Hashtags: #depositions, #discovery, #ethics, #sanctions
- Erin C. Asborno, “A Guide to the Ethical Preparation of Witnesses for Deposition and Trial,” Trial Prac. (Dec. 13, 2011).
- Kimberly L. Beck, “Tips and Strategies to Improve Your Depositions,” Products Liab. Litig. (Apr. 9, 2019).
- Mihai Vrasmasu and Vanessa Offutt, “Five Tips for Conducting Remote Video Depositions,” Pretrial Prac. & Disc. (July 31, 2020).
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