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Attorney Suspended for Coaching Witness Via Text During Telephone Deposition

Kirstin Kennedy

Attorney Suspended for Coaching Witness Via Text During Telephone Deposition
LightFieldStudios via Getty Images

The COVID-19 pandemic has forced many attorneys into the realm of remote depositions. On one hand, the onset of remote depositions has made it easier for attorneys to depose individuals across the country at a cost lower than ever before. However, the more informal format has also opened the possibility of a blurring of ethical lines. For example, a Florida attorney, Derek Vashon James, recently received a 90-day suspension from the Florida Supreme Court after he was accused of coaching a witness via text messages during a telephonic deposition. See The Florida Bar v. Derek Vashon James, No. SC-20-128 (2021).

The issue surrounded James, who represented an employer in a worker’s compensation matter. On July 31, 2018, Toni Villaverde, the attorney representing the employee, took the telephone deposition of Renee Gray, the insurance adjuster of the employer represented by James. There was no video component to the testimony given by Gray, and the parties were all situated in separate locations. As Villaverde began questioning Gray, she noticed “typing sounds” coming across the line. She then asked James if he was texting with Gray as she provided her testimony. James denied the accusation and informed Villaverde that he was not texting with Gray, but rather, with his daughter.

In fact, records later showed that James was texting with Gray throughout the course of her deposition testimony. Importantly, the text messages exchanged between the two related to the nature of Gray’s testimony. For example, among other statements, James sent text messages to Gray, which read: “You remember the deposition but not discussing checks” and “Just review notes from 02/20/2018 forward.” Upon suggestion by James, Gray asked that the parties take a break, and Villaverde agreed. When the testimony resumed, James, again, sought to send text messages to Gray; however, he inadvertently sent the messages to Villaverde. Among several text messages, James accidently sent Villaverde messages that read: “Don’t give an absolute answer” and “Then say that is my best answer at this time.” Soon after the messages were received by Villaverde, she stopped the deposition and, ultimately, referred the issue to the judge of compensation claims. Upon order of court, James produced a series of text messages from the date of the deposition, none of which were sent to or from his daughter. Further, despite James’s claims, all the messages that he exchanged with Gray were determined to have been sent during the time of her testimony.

A disciplinary referee found that James was inappropriate in his coaching of Gray during her testimony as well as in his denial of the act to Villaverde. This was because, according to the referee, he was deceptive both on the date of the deposition as well as to the judge of compensation claims in his insistence that the text messages were only exchanged during the break in testimony. As such, the referee found that he violated the Florida Bar Rules of Professional Conduct 3-4.3 and 4-3.4, which respectively relate to misconduct and unlawful obstruction of evidence. However, the referee found that he was not guilty of engaging in conduct that is “prejudicial to the administration of justice,” as is required under Rule 4-8.4(d). It was recommended that James be suspended from the practice of law for 30 days. The Florida Supreme Court later affirmed the violation of Rules 3-4.3 and 4-3.4, and further found James guilty of violating Rule 4-8.4 because of his interference with the presentation of the evidence and the related misrepresentations. His suggested suspension was thereby extended to 90 days.

It stands to reason that many attorneys may have been or will be tempted to proceed as James did when addressing a witness who encounters a challenging line of questioning from an opponent during a remote deposition. While it is unlikely that others will also incidentally send such messages to opposing counsel, the ethical barrier is nonetheless broken when an attorney seeks to coach a witness during her testimony. If nothing else, The Florida Bar v. James serves as a reminder that compliance with ethics is important, even when no one is watching.