We recently wrote about ethical considerations that are present in every deposition. We saw that the ethical rules applicable to depositions are mainly concerned with ensuring the integrity of the judicial process — professional obligations designed to guard against false testimony, overly coached testimony, or testimony that is unreliable in light of the circumstances under which it was produced.
These same considerations are also present in remote depositions. In this article, we will continue our practice of describing these ethical rules in a short list of “do not” commands that, we hope, will provide a framework for thinking about providing high-quality, ethical advocacy during remote depositions.
- Do not fail to master the technology used for remote depositions.
Nearly every jurisdiction in the United States imposes upon lawyers a duty of technological competence.
Comment 8 to ABA Model Rule 1.1 (Competence) reads: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
Comment 8 requires that lawyers
- keep abreast of technology innovation in their practices
- develop and maintain skill in the use of those technologies, and
- understand technology-related risks and benefits to their clients
With respect to remote deposition practice, Comment 8 suggests that lawyers are ethically obliged to develop expertise in using remote deposition technologies themselves, as well as expertise in preparing clients for delivering effective remote testimony in their cases.
- Do not tolerate coaching or other external influences.
Most lawyers are familiar by now with the case of the Florida attorney who was suspended for texting the witness during a deposition. Less widely known is the case of an Arizona lawyer who received a two-month suspension for coaching a client using the chat function of the technology platform the trial court was using to conduct a virtual proceeding.
The danger in both cases is the same: the presence of technology-enabled external influences that poisoned the integrity of the proceeding.
A lawyer’s ethical obligation to guard against external influences derives both from Comment 8 (technology competence) and, arguably, from the ethical duty to diligently represent the client. Comment 1 to ABA Model Rule 1.3 (Diligence) commands lawyers to “take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”
Now that surreptitious coaching is a known danger in remote proceedings, lawyers should take reasonable measures to minimize the threat of coaching to their client’s interests. In the context of a remote deposition, such steps might include:
- on-the-record warnings to the deponent that coaching or other external influences are prohibited
- seeking an on-the-record statement from the deponent identifying others in the room
- seeking an on-the-record promise from the deponent to not look at mobile phones or computer screens during the deposition
- preparing a remote deposition protocol (PDF) clearly spelling out the ground rules for the deposition and the consequences for failure to adhere to those rules
- Do not “screen share” confidential information.
ABA Model Rule 1.6 (Confidentiality of Information) obliges lawyers to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
This ethical duty can be violated during remote depositions if during a “screen sharing” moment the lawyer’s screen can be seen to display information relating to the client. Or if the surroundings visible on-screen behind the lawyer reveal client confidential information. Also, privileged attorney work product can be mistakenly shared as documents.
The solution to these problems is for the lawyer to become an expert in the use of the technology platform supporting the remote deposition. This alone will drastically cut back on “accidents” during the deposition.
Lawyers should also close all software applications on any screen that might be “shared” during a remote deposition. It is often possible to share just the relevant document, not the entire computer screen.
Another strategy is for the lawyer to use a virtual background instead of revealing the actual in-office environment behind the lawyer on-screen. But be careful deploying this strategy if there is a chance the deposition will be used at trial. There is some evidence that jurors don’t like virtual backgrounds.
- Do not fail to train everyone on the litigation team.
Finally, the ethical duty of supervision found in ABA Model Rule 5.1 (Responsibilities of a Partner or Supervisory Lawyer) imposes on law firm leaders an obligation to ensure that everyone involved in the representation conforms to all ethical obligations applicable to remote depositions discussed above. Ethically speaking, the litigation team is only as strong as its weakest link.