The line dividing zealous advocacy and professional misconduct can be hard to spot, and it can appear with little advance notice during a heated moment in litigation. This is particularly true in pretrial depositions, which take place without judicial supervision and where the lawyers are left to call their own balls and strikes in question-and-answer sessions that often last all day long.
For this reason, aggressive but ethical advocacy requires all counsel to have a firm grasp of the ethical rules that govern depositions – as well as a personal commitment to faithfully abide by them. Failure to do so risks sanctions, the inconvenience and/or embarrassment of conducting the same deposition twice, and possible adverse consequences for the client.
Watchwords: Candor and Civility
The following rules, phrased in a series of eight “do not” commands, capture the most important considerations for lawful and ethical deposition practice.
- Do not make false statements during questioning.
Several ethical rules are implicated when a lawyer’s questioning of a deponent contains a misstatement about the facts or the law.
Rule 4.1 of the ABA Model Rules of Professional Conduct (Truthfulness in Statements to Others) provides that a lawyer “shall not knowingly … make a false statement of material fact or law to a third person.”
Rule 8.4 of the ABA Model Rules of Professional Conduct (Misconduct) prohibits a lawyer from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Finally, Rule 3.3 of the ABA Model Rules of Professional Conduct (Candor Toward the Tribunal) states that a lawyer may not knowingly “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”
These rules cover not only demonstrably false assertions of fact, but also leading questions that contain as their predicate an untrue statement.
- Do not ask questions designed to elicit false testimony.
Rule 3.3(3) states unequivocally that a lawyer “may not offer evidence that the lawyer knows to be false.”
This rule is implicated when a lawyer leads a witness into making a false statement during a deposition and, later, when the lawyer offers the witness’s false testimony into evidence at trial.
- Do not fail to correct false statements.
Here again, Rule 3.3(3) controls. “If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
When defending a deposition, a lawyer’s failure to correct a client’s false statement likely runs afoul of Rule 3.3(3).
- Do not bluff.
At a minimum, bluff with caution.
In the case of Cincinnati Bar Assoc. v. Statzer, 800 N.E.2d 1117 (Ohio 2003), a lawyer conspicuously placed several cassette tapes in view of the deponent and falsely suggested that they contained recordings that could impeach the deponent’s testimony. The Ohio Supreme Court affirmed a disciplinary panel’s finding that the lawyer’s conduct violated Ohio’s professional ethical rule forbidding conduct involving fraud, deceit, dishonesty, or misrepresentation. The court also concluded that the lawyer violated a separate ethical rule prohibiting a lawyer from alluding to matters that will not be supported by admissible evidence.
- Do not give verbal or non-verbal cues to the deponent.
In Kelvey v. Coughlin, 625 A.2d 775 (1993), the Rhode Island Supreme Court addressed what was allegedly a common practice among that state’s attorneys: directing deposition witnesses to refrain from answering questions, for any number of reasons. The court stated that the only permissible reason for an attorney to direct a witness to refrain from answering a deposition question is to prevent the deponent from divulging privileged information.
Along the way, the court had the following to say about objections that attempt to shape witness testimony:
Counsel for the deponent shall refrain from gratuitous comments and directing the deponent in regard to times, dates, documents, testimony, and the like. Counsel shall refrain from cuing the deponent by objecting in any manner other than stating an objection for the record followed by a word or two describing the legal basis for the objection.
Applying this rule, this objection is permissible:
“Objection, compound question.”
But this objection is not permissible:
“Objection, you have misstated the standard of care.”
- Do not direct the deponent to refrain from answering a question (except to assert privilege).
The rule announced in Kelvey is consistent with rules in the federal system and in many states. Lawyers may not defend their witness during depositions by instructing them to refrain from answering questions unless a privilege is at stake.
But Kelvey isn’t the law everywhere. In Texas, for example, Rule 199.5(f) specifically permits lawyers to instruct witnesses to refrain from answering questions for a number of reasons – in order to “preserve a privilege, comply with a court order or these rules, protect a witness from an abusive question or one for which any answer would be misleading,” among other grounds.
- Do not conduct mid-deposition conferences with the deponent.
Unless the court rules in your jurisdiction permit them. Most don’t.
In Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), a frequently cited ruling, the court came down hard on the topic of mid-deposition conferences between deponent and counsel:
Once the deposition has begun, the preparation period is over and the deposing lawyer is entitled to pursue the chosen line of inquiry without interjection by the witness’s counsel. Private conferences are barred during the deposition, and the fortuitous occurrence of a coffee break, lunch break, or evening recess is no reason to change the rules.
Once again, Texas has gone its own way on this topic, permitting conferences during recesses and breaks. Rule 199.5(d) provides in pertinent part:
Private conferences between the witness and the witness’s attorney during the actual taking of the deposition are improper except for the purpose of determining whether a privilege should be asserted. Private conferences may be held, however, during agreed recesses and adjournments. If the lawyers and witnesses do not comply with this rule, the court may allow in evidence at trial statements, objections, discussions, and other occurrences during the oral deposition that reflect upon the credibility of the witness or the testimony.
One commentator has suggested that a better approach is to distinguish between mid-deposition conferences that are requested by the deponent and those that are requested by counsel. Deponent-requested conferences should be allowed based on due process considerations, but counsel-requested conferences should be prohibited.
- Do not harass the deponent or opposing counsel.
Here we’re talking about professionalism and civility. The following two examples should be sufficient to frame the problem.
In Principe v. Assay Partners, 586 N.Y.S.2d 182 (1992), a male attorney directed the following comments toward a female attorney representing the deponent in a pretrial deposition:
“I don’t have to talk to you, little lady;”
“Tell that little mouse over there to pipe down;” “What do you know, young girl;”
“Be quiet, little girl;”
“Go away, little girl.”
In Unique Concepts v. Brown, 115 F.R.D. 292 (S.D.N.Y. 1987), similarly disparaging remarks were directed by one lawyer toward counsel for the deponent:
“You are being an obnoxious little twit. Keep your mouth shut.” “You are a very rude and impertinent young man.”
The offending attorneys in Principe and Unique Concepts were both sanctioned.
ABA Model Rule 8.4(g) specifically addresses this type of behavior, stating that attorneys should not “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
In ABA Formal Opinion 493, boorish, sexually suggestive comments during a deposition were called out for disapproval.
With the exception of rules against harassment and other uncivil behavior, the ethical rules that govern lawyer conduct during depositions are mainly intended to preserve the integrity of the legal system. By forbidding the knowing creation of false or otherwise unreliable evidence, the ethical rules governing pretrial depositions ensure that the factfinder has the best possible evidence on which to reach a decision in the case.
In our adversarial system of justice, the first line of defense against the introduction of unreliable evidence is, of course, opposing counsel.