A Surreptitious Recording
During the recess, court software recorded a conversation between the plaintiffs and their attorney. During the conversation, the attorney instructed the plaintiff-witness to identify a particular location in the photograph near a bench as the location where the fall took place. When the virtual trial resumed, defense counsel moved for a mistrial, advising that the plaintiffs’ attorney’s microphone was on during recess and he “listened to [the plaintiff's attorney] coaching the witness with the witness’ husband.” Counsel also moved for a dismissal of the plaintiffs’ complaint with prejudice. After listening to the recording, the trial court granted a mistrial.
During a hearing on the dismissal motion, one of the judge’s paralegals testified that during the conversation, the plaintiff-witness told her attorney she could not recall where she fell. The attorney did not rebut this testimony but argued it was clear from the witness’s deposition that she knew the location of her fall.
The trial court dismissed the plaintiffs’ complaint with prejudice, finding the plaintiff’s attorney’s invitation to testify that the fall occurred at a particular location, when the witness had no independent recollection, was too prejudicial to allow a jury to decide the case. According to the trial court, “the well of information that could be presented to the jury has been forever poisoned.” The court further observed that counsel’s “directive was to create a falsity and commit fraud” on the court and ordered the plaintiffs’ counsel to pay the defendant’s fees and costs associated with the trial and with the defense motion. On appeal, the Superior Court of New Jersey affirmed the decision of the trial court.
Old Problems in a New Context
When participating in virtual proceedings, attorneys should remember they “risk waiving the attorney-client privilege or breaching the duty of confidentiality under the disciplinary rules (Model Rule 1.6) if anyone else is listening or recording,” says Jeanne M. Huey, Dallas, TX, Co-Chair of the Litigation Section’s Ethics & Professionalism Committee. Best practice is to not “talk to your client, co-counsel, witness, paralegal, or anyone else while logged into a court’s virtual platform unless you want what you are saying heard and/or recorded,” she adds. Huey also recommends avoiding confidential conversations in Zoom breakout rooms for the same reason.
“The attorney could have refreshed his client’s recollection in open court,” remarks Judge Lucy Inman (Ret.), Raleigh, NC, a member of the Section’s Ethics & Professionalism Committee. A good way to refresh recollection is to “refer to deposition testimony and confirm the witness’s answers are unchanged,” explains Inman, a former North Carolina trial and appellate judge. Best practice “is to conduct a detailed client interview early on in the case and have the client draw a map of the accident scene,” she says. The witness’s own drawing or notes can be used to refresh recollection before trial or during trial if necessary.
Attorneys “have a duty to be competent in the technology we use—and that includes the technology used by the court,” reminds Huey. “This duty is part of our duty of competence under ABA Model Rule 1.1, Comment 8 which provides: ‘To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . ..’” “In this case, the [trial court’s] ‘backup’ recording system was running, and so not only was plaintiffs’ counsels’ conversation with his clients overheard by others—it was recorded,” explains Huey.
“In light of the attorney’s promise to the trial court that he would not speak with his client during her testimony, even on a lunch break, counsel should have advised the trial court as soon as he realized he needed to discuss with his client how to place the cursor on the screen,” says Inman. “Refreshing recollection becomes witness coaching when an attorney gives the witness the answers,” she adds. “Do not put words in your client’s mouth,” she cautions in conclusion.