The Ohio Board of Professional Conduct recently considered an interesting issue related to deposition practice: whether or not nonlawyers such as paralegals can ethically participate in pretrial depositions. The board decided in Taking of a Deposition by a Paralegal or Out-of-State Lawyer (Ohio Board of Professional Conduct, No. 2022-13) that they may not … under any circumstances.
During a deposition, litigators are called upon to:
- identify legally relevant facts that will be used to shape trial strategy
- elicit testimony from witnesses that supports (or refutes) a legal cause of action
- advise witnesses on legal issues relating to their testimony
- ask follow-up questions that rely on legal analysis of a witness’s prior testimony
- make assessments of witness credibility with the judge or jury
- predict settlement value or potential legal exposure based on witness testimony
These are all legal skills that cannot ethically be delegated to a paralegal, the board concluded.
Depositions: The Most Important Discovery Tool
Depositions are widely considered the most important pretrial discovery tool available to litigators, and, according to one court, the “factual battleground where the vast majority of litigation actually takes place.” Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993).
In a deposition, litigators learn in advance of trial what testimony will be given by the deposition witness. Having an opportunity to observe the witness also gives litigators insight into whether the witness will be believable to the factfinder if the case is tried.
In a deposition, litigators are often called upon to ask appropriate follow-up questions that rely on a legal analysis of a witness’s answer. When defending a deposition, litigators listen to determine whether opposing counsel is attempting to elicit inappropriate information and, if so, make legal objections.
Litigators also use depositions to assess the performance of opposing counsel. In Soliz v. State, 97 S.W.3d 137 (Texas Ct. Crim. App. 2003), the court remarked:
When evaluating the strength of their client’s case, litigators often accord great weight to witnesses’ and attorneys’ performances during depositions. Thus, if an attorney’s client performs well while the opponent performs poorly, the attorney may attach a higher settlement value to the case. … Depositions are a dress rehearsal — and due to high settlement rates are often a substitute — for trial. Therefore, attorneys tend to attach more importance to depositions than to most paper discovery.
A Florida appellate court, in State v. Foster, 674 So.2d 747 (Fla.App. 1996), commented that “without a doubt, the process of directly examining or cross-examining a witness can affect important rights under the law.”
Litigators rely on their legal training and skills to question witnesses effectively. Also, depositions often present ethical questions or raise strategic considerations of the utmost importance in contested litigation. According to Foster, a nonlawyer “cannot be expected to have the requisite training and experience to devise a coherent theory of the case, to object to potentially damaging testimony on the record, or to cross-examine effectively.”
The Foster court concluded that the active participation of a nonlawyer in a deposition constituted the unauthorized practice of law.
The Ohio ethics board found these cases persuasive on the critical role that lawyers play in pretrial depositions. In Ohio, it said, lawyers cannot ethically delegate the responsibility of taking or defending a deposition to a paralegal. “A lawyer who instructs a paralegal to take a deposition, prepares deposition questions for a paralegal to use, supervises a paralegal in taking a deposition, or instructs a paralegal to represent a deponent at a deposition is assisting in the unauthorized practice of law,” the board ruled.
Ohio courts have twice previously considered the lawful deposition roles of individuals not admitted to law practice. In Mahoning Cty. Bar Assn v. Rector, 608 N.E.2d 866 (1992), the court ruled that a corporate officer engaged in the unauthorized practice of law when he objected to questions asked of deponents by opposing counsel and instructed a deponent not to answer a question. And in Disciplinary Counsel v. Brown, 99 Ohio St.3d 114 (2003), a court ruled that a disbarred attorney engaged in the unauthorized practice of law when he participated in pretrial conferences and depositions.
Paralegals Can Attend Depositions for Limited Purposes
The board’s ethical opinion doesn’t mean that paralegals cannot attend depositions. In fact, paralegals frequently attend depositions in situations in which an attorney decides that the witness is not likely to offer important testimony. Typically, these are cases with numerous parties — and attorneys — on both sides.
The paralegal’s ethics code advises that, in cases where a paralegal is attending the deposition as an observer, the paralegal should inform everyone at the deposition that she or he is an observer only and will not be asking questions or representing any party to the litigation. While serving in the role of an observer, the paralegal will also not make objections or enter into agreements or stipulations on behalf of his or her firm or anyone represented by the firm.
Because conducting and defending depositions calls for a level of legal knowledge and legal judgment few paralegals possess, it’s clear that depositions would rarely promote justice unless all participants complied with norms of professional ethics. The lawyer’s ethical obligations to refrain from I ntentionally eliciting false testimony, to correct false testimony when given, to refrain from giving verbal cues to the deponent and to refrain from harassing the deponent – all of these ethical obligations are vital to ensuring that depositions efficiently and fairly advance the cause of justice.
In fact, so important is the lawyer’s role at a deposition that one court recently ruled that civil litigants have a constitutional right to the presence of their lawyer during a deposition.
Lawyers invite discipline if, through lack of adequate supervision, their paralegals engage in the unauthorized practice of law. ABA Model Rule 5.3 requires lawyers to make reasonable efforts to ensure that nonlawyers in their firm do not violate ethical standards. Specifically, the ABA has cautioned attorneys that paralegals may not participate in depositions or engage in any conduct that might leave the impression with the client or court that the paralegal is licensed to practice law.