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Adventures in the Law: Case of the Tell-Tale Clicks

Norm Tabler


  • Attorney Derek James attempted covertly coaching a witness during a deposition via text messages.
  • Opposing counsel detected audible keyboard clicks during the deposition, questioning James, who denied texting.
  • James later resumed texting, mistakenly sending incriminating coaching instructions to opposing counsel, resulting in a 91-day suspension.
Adventures in the Law: Case of the Tell-Tale Clicks

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Florida attorney Derek James had a crackerjack idea for secretly coaching his witness during a telephone deposition when he, the witness, and opposing counsel were all in separate locations.

He would coach the witness by text! Because there was no video, he reasoned, no one could see his thumbs flying across the tiny keyboard. And the audio didn’t matter because he was writing, not speaking˗˗not even whispering˗˗to the witness! What could possibly go wrong?

A lot, as it turned out.

First, there was the matter of audio. Derek was correct in reasoning that the content of his texts couldn’t be heard. But the fact of texting could be heard, and it was. Why? Because Derek, for all his wiliness, had forgotten to turn off the keyboard-clicks option on his smartphone.

That meant that opposing counsel, Toni Villaverde, could hear the click, click, click of Derek’s texts as she questioned the witness. Alerted by the clicks, Toni stopped the deposition and asked Derek whether he was texting the witness. Derek denied it, claiming he had simply received a text from his daughter (as though an incoming text makes a click, click, click sound).

Toni asked Derek to stop texting and put his phone away. He agreed.

After the break, when Toni continued her questioning, Derek resumed his coaching of the witness by text. We don’t know whether he had turned off his keyboard-clicks option. But we do know that he made another mistake: He sent the texts to Toni rather than the witness.

You read that correctly: Perhaps blinded by his own cleverness, Derek addressed the texts to Toni. And the texts were somewhat incriminating, including such gems as “just say it anyway,” “don’t give an absolute answer,” “it’s a trap," and “say it’s my best answer,”

When Toni noticed the unexpected correspondence from Derek, she stopped the deposition. Later, she moved for production and inspection of all the texts. That’s when Derek discovered another disadvantage of coaching by text: It leaves a written record, a word-by-word transcript of the coaching instructions.

Derek produced two pages of text messages. All were instructions and directions intended for the witness. Why did none involve his daughter? the judge wondered. Because, Derek lamely explained, his own “technological limitations” prevented him from retrieving those particular texts.

The judge ruled that the texts were sent during the deposition, not during a break, and that they were not protected by attorney-client privilege.

Not surprisingly, disciplinary proceedings ensued. The referee ruled that Derek had, indeed, texted the witness while she was being questioned and that his texts told her what to say, how to answer, to avoid providing certain information, to remember a deposition but not discuss certain checks, and not to give an absolute answer, all of which, the referee ruled, were dishonest.

What’s more, the record showed that after the deposition, Derek had dishonestly attempted to convince Toni that he had sent the texts during a break. The record also showed that during the hearing on Toni’s motion for production and inspection, Derek had not been forthright.

The referee recommended that Derek be found guilty of violating Florida Bar Rules 3-4.3 (misconduct and minor misconduct) and 4-3.4(a) (unlawful obstruction of another party’s access to information), but not guilty of violating 4-8.4(d) (conduct prejudicial to the administration of justice). The referee recommended a 30-day suspension.

The Florida Bar appealed the referee’s finding that Derek was not guilty of violating Rule 4-8.4(d), as well as the recommendation of a mere 30-day suspension.

The Florida Supreme Court agreed with the referee’s factual findings and with the finding that Derek had violated Rules 3-4.3 and 4-3.4(a). But the court agreed with the Florida Bar that Derek had also violated Rule 4-8.4(d), holding that “dishonesty in the practice of law is prejudicial to the administration of justice.”

The court also agreed that a 30-day suspension was inadequate. It suspended Derek for 91 days. Why 91 and not 90? Because when a suspension is more than 90 days, reinstatement is not automatic.

The case is The Florida Bar v. Derek James, Fla. Sup. Ct., 2021.