An attorney is representing an architect sued for malpractice. During a break in the deposition, the architect asks his attorney, “How do you think I’m doing so far?” What are the attorney’s ethical obligations in this situation?
Although the absolute safest course of action is for the lawyer to advise the client that they should not discuss his prior testimony while the deposition is still in progress, this is not required in all jurisdictions.
Several jurisdictions have local rules, orders, or guidelines regulating deposition recesses. For example, one such rule states:
(E) Counsel and witnesses shall not engage in private, "off the record" conferences during depositions or during breaks or recesses regarding the substance of the testimony at the deposition, except for the purpose of deciding whether to assert a privilege or to make an objection or to move for a protective order.
On the other hand, some jurisdictions permit counsel to confer with a client during a break in the client’s deposition. In the U.S. District Court for the Middle District of North Carolina, the relevant rule states:
(3) Counsel and their witness-clients shall not engage in private, off-the-record conferences while the deposition is proceeding in session, except for the purpose of deciding whether to assert a privilege. Counsel may confer with their clients during mid-morning, lunch, mid- afternoon, or overnight breaks in the deposition. However, counsel for a deponent may not request such a break while a question is pending or while there continues a line of questioning that may be completed within a reasonable time preceding such scheduled breaks.
Some jurisdictions have guidelines on the issue. In the U.S. District Court for Maryland, Discovery Guideline 6(g) states:
During breaks in the taking of a deposition, no one should discuss with the deponent the substance of the prior testimony given by the deponent during the deposition. Counsel for the deponent may discuss with the deponent at such time whether a privilege should be asserted or otherwise engage in discussion not regarding the substance of the witness’s prior testimony.
In some jurisdictions, there is no rule or guideline, but there is case law governing the question. See Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993) (holding that “conferences between witness and lawyer are prohibited both during the deposition and during recesses.”); but see McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 649-50 (D.Colo. 2001) (truth finding function of deposition is adequately protected if deponents are prohibited from conferring with their counsel while question is pending; other consultations, during periodic deposition breaks, luncheon and overnight recesses, and more prolonged recesses ordinarily are appropriate); In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998) (“It is this Court’s experience, at the bar and on the bench, that attorneys and clients regularly confer during trial and even during the client’s testimony, while the court is in recess, be it mid morning or mid afternoon, the lunch recess, (or) the evening recess. The right to prepare a witness is not different before the questions begin than it is during (or after, since a witness may be recalled for rebuttal, etc., during trial). What this Court, and the Federal Rules of Procedure seek to prevent is coaching the witness by telling the witness what to say or how to answer a specific question. We all want the witness’s answers, but not at the sacrifice of his or her right to the assistance of counsel.”)
Standard 18 of the ABA’s Civil Discovery Standards (2004 edition) provides additional guidance on this issue.
Even where no case law, rule, or guideline regulates conduct during deposition breaks, the judge presiding over the case may have issued an order governing the issue—either a standing order, for all cases before the judge, or an order specific to the pending case.
From ethics perspective, if there is no rule or case law restricting an attorney from speaking to the client during a deposition recess, the attorney’s duty to provide competent representation (Rule 1.1), and the obligation to communicate with his or her client (Rule 1.4), may require the attorney to confer with the client, as long as the attorney complies with his or her ethical responsibilities of honesty and fairness to opposing counsel and the tribunal (Rule 4.1 and Rule 3.3).
If a lawyer believes that his client has testified falsely in a deposition, the attorney’s duty to prevent perjury may require the attorney to ask for a recess to advise a client to correct false testimony.
Finally, if you can reach an agreement with opposing counsel on conferring with a witness during a deposition, both sides can take greater comfort in their diligent representation of their clients.
