“Discovery is a taxing experience for attorneys and their clients. At times, personalities clash, which may permeate litigation through frivolous motions and vexatious arguments, as Respondent has participated in here. This behavior is caustic to the legal profession and particularly dangerous to the public when attorneys fail to recognize their misconduct.”
Maryland Attorney Grievance Commission v. Sloane, No. AG 37 (Md., March 2, 2023).
We’ve written often about the ways that professional ethics obligations dictate behavior that is, and is not, acceptable when conducting discovery depositions. Using profanity during a deposition, directing witnesses to refrain from answering questions, coaching witnesses, and exhibiting boorish behavior during remote depositions have all attracted judicial attention, and even supplied the basis for legal reform proposals.
Still, incivility rarely leads to professional sanctions. But that’s what happened in a recent case from Maryland, where one attorney’s obstructive and unprofessional conduct surrounding a pair of discovery depositions, among other ethical transgressions, in a divorce case prompted the Supreme Court of Maryland to indefinitely suspend the attorney’s law license with permission to apply for reinstatement in six months.
The court found that the attorney’s obstructive conduct during a pair of depositions violated professional ethics rules on expediting litigation, demonstrating fairness toward opposing parties and attorneys, and conducting litigation in a matter that does not cause embarrassment, delay, or burdens to other parties.
Professional Responsibility Regarding Depositions
The case, a divorce and custody dispute, was contentious. Protective orders, judicial supervision, and monetary sanctions were all employed in an effort to protect the wife’s right to meaningful pretrial discovery and keep the case moving forward as expeditiously as possible. The assistance of the trial court was necessary to rein in obstructive and dilatory behavior regarding both written discovery and depositions.
The husband’s first deposition lasted one hour before the wife’s attorney ended it because, according to the court, the husband’s attorney (the subject of the discipline here) was making “baseless objections,” “speaking objections,” and answering questions posed to the husband.
The husband’s second deposition proceeded along the same lines as the first one. The husband’s attorney interrupted the deposition with speaking objections and instructions that the husband not answer questions about his own bank statements. The trial judge intervened, explaining to the husband’s attorney the distinction between discovery and trial objections. Undeterred, the husband’s attorney made approximately 277 objections during the second deposition, many of which lacked a “discernible basis,” according to the court.
Among the numerous ethical lapses later lodged against the husband’s attorney, three were related to his conduct during depositions of his client.
Expediting Litigation. Maryland Attorneys’ Rules of Professional Conduct 19-303.2 provides that “[a]n attorney shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
The court found that the husband’s attorney violated Rule 19-303.2 by making speaking objections and refusing to cooperate in written discovery processes that forced the cancellation of the husband’s first deposition. “We hold that Respondent violated MARPC 19-303.2 because his conduct hindered and delayed the litigation of the […] matter without any substantive purpose,” the court wrote.
Fairness to Others. Maryland Attorneys’ Rules of Professional Conduct 19-303.4, which addresses fairness to the opposing party and attorney, provides in part that an attorney shall not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists” or “make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”
The appellate court noted the trial court’s remark that the attorney exhibited “a complete and total disregard for what the laws say” during the husband’s first deposition, adding that his objections were “not legitimate.” The court also cited the trial judge’s conclusion that the attorney had objected 277 times during the second deposition largely without a “discernible basis” as additional support for finding a violation of Rule 19-303.4.
Burdensome Tactics. Maryland Attorneys’ Rules of Professional Conduct 19-303.4 provides that “an attorney shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”
The court found that the attorney’s “obstructive” conduct during both the first and second of the husband’s depositions violated this rule. Conduct that occurred outside the depositions — i.e., frivolous filings and deficient responses to the wife’s written discovery requests — also contributed to the court’s conclusion that Rule 19-303.4 was violated here.
The court’s disapproval of the attorney’s behavior was tempered by the fact that his unethical conduct was limited to this case alone, his lack of prior disciplinary history, and by the numerous witnesses who testified to his good character. With these mitigating factors in mind, the court rejected the Maryland Attorney Grievance Commission’s contention that the appropriate sanction was disbarment.
Promoting Civility in Depositions
Pretrial discovery — an adversarial process that takes place largely outside of judicial view — is often identified as an acute source of incivility among litigators. State bar associations and some courts responded by adopting civility codes that identify trouble spots and encourage better behavior during pretrial discovery in general and discovery depositions in particular.
The following guidelines for professional behavior during depositions have been excerpted from three such codes of conduct: the New York State Bar Association’s Standards of Civility, the American Bar Association’s Guidelines for Conduct, and the Civility and Professionalism Guidelines published on the website of the U.S. District Court for the Central District of California.
Regarding scheduling and personal conduct during a deposition, lawyers should:
- conduct themselves with dignity and refrain from engaging in acts of rudeness and disrespect
- not engage in any conduct during a deposition that would not be appropriate in the presence of a judge
- not obstruct questioning during a deposition or object to deposition questions unless necessary
- refrain from asking repetitive or argumentative questions and from making self-serving statements
- not, when a question is pending, through objections or otherwise, coach the deponent or suggest answers
- not direct a deponent to refuse to answer questions except as necessary to preserve a privilege or to enforce a limitation ordered by the court
- not, absent good cause, attribute bad motives or improper conduct to other counsel
- cooperate with opposing counsel when scheduling changes are requested, provided the interests of his or her client will not be jeopardized
- respond to discovery requests reasonably and not strain to interpret the request so as to avoid disclosure of relevant and nonprivileged information
- advise their clients and witnesses of the proper conduct expected of them in depositions, and make reasonable efforts to prevent clients and witnesses from causing disorder or disruption
Finally, we’re pleased to report that unprofessional behavior during depositions is not common and is, in fact, trending in the right direction.