When Deposition Advocacy Becomes Unethical

The German philosopher Arthur Schopenhauer, a cranky cultural observer who believed human beings were doomed to an existence no more fulfilling than the lives of moles, was nevertheless clear-eyed about the value of civility. Willful incivility, Schopenhauer wrote, is as foolish as setting your house on fire.

For litigators, incivility during a deposition can have significant though admittedly less incendiary consequences. Attorneys who violate professional standards of behavior during depositions can have their license suspended, their privilege to practice outside their own jurisdiction revoked, or even have their case dismissed.

Consider the recent case of an Illinois attorney whose crude behavior during a contentious deposition earned a proposed three-month suspension from the practice of law by the Illinois Attorney Registration and Disciplinary Commission. Using only the powers of his own incivility toward opposing counsel, the attorney extracted from two deposition questions a temporary suspension of his license to practice law.

Incivility + Lack of Contrition = Temporary Suspension

The attorney’s sanctionable conduct, according to the review board’s opinion, arose from two offensive remarks:

 (1) The attorney’s statement that opposing counsel should “certify your own stupidity” after she asked to certify a deposition question for the trial court’s review, a question that the attorney had directed the witness not to answer.

(2) The attorney’s statement, after he again directed the witness not to answer a question, prompting another request by opposing counsel to flag the question for the trial court’s review, “I’m going to get sanctions against your firm like you wouldn’t believe, b***h.”

At the hearing on opposing counsel’s motion to compel, the trial court admonished the attorney for his behavior at the deposition. The court gave the attorney an opportunity to file a response. The attorney’s response, according to the review board, only made matters worse. He expressed little contrition for his behavior and, in fact, made a series of false assertions about that trial court that questioned the trial court’s impartiality and integrity in handling the matter. The trial court subsequently reported the attorney to the disciplinary commission.

The review board, while acknowledging that cases of similar behavior drew only reprimands, agreed with the hearing board that the attorney’s deposition behavior coupled with his subsequent inability to muster grace under the pressure of the trial court’s hearing merited a more severe sanction. “Respondent’s conduct at his hearing raises concerns about his ability or willingness ‘to conduct himself in a professional and ethical manner when faced with stressful or adversarial circumstances,’ ” the review board wrote, quoting the hearing board opinion.

Along the way, the review board noted opposing counsel’s testimony that the incident causes her to feel embarrassment and worry about her reputation as a lawyer. Opposing counsel also testified that the incident caused her to limit communications — including settlement discussions — with the sanctioned attorney.

The review board found that the attorney had violated Rule 8.2(a) of the Illinois Rules of Professional Conduct (statements that are false or made with reckless disregard of the truth against judges) and Rule 8.4(d) (conduct prejudicial to the administration of justice).

Other Sanctionable Deposition Behavior

The Illinois case is hardly the only instance of attorneys engaging in sanctionable behavior during a deposition. Among the many cases in which attorneys have behaved in a way that falls short of professional standards during the heat of a deposition, the following stand out:

In a condemnation case, attorney’s pro hac vice admission to Delaware courts revoked for unprofessional conduct during a deposition. The court found that the attorney had violated the “spirit and framework” of Delaware’s Canons and the Principles of Lawyer Conduct by filing to take steps to restrain his client’s disruptive and disrespectful behavior during a deposition. State v. Mumford, 731 A.2d 831 (Del. Super. 1999)

In Saldana v. Kmart Corp., 42 V.I. 358 (D. V.I. 1999), the court lamented having to serve as “kindergarten cop” in a discovery dispute caused by an attorney “who either never learned or has forgotten the basic good manners others learned before first grade.” The attorney was found to have violated Rule 8.4(d) due to, among other things, repeated use of profanity during a deposition and a hyper-aggressive defense of the witness that made it nearly impossible for the opposing attorney to elicit testimony from the witness.

A New York state court found it “difficult to find one among the 217 pages of the deposition which does not contain willful evasion, gratuitous insult, argumentative response, or patent rudeness from the plaintiff.” The plaintiff, an attorney representing himself, added to the abuse heaped on the attorney deposing him by mimicking his speech patterns. En route to dismissing his complaint as a sanction for his misbehavior, the court held that the plaintiff’s deposition conduct violated the New York Code of Professional Responsibility. Corsini v. U-Haul Intern., Inc., 212 A.D.2d 288 (N.Y. App. Div. 1995).

In Mruz v. Caring, Inc., 107 F.Supp.2d 596 (D. N.J. 2000), the court revoked the pro hac vice admission of an attorney due to violations of “fundamental precepts of professional civility” during a deposition in a Medicaid and tax fraud case. The court found that the attorney’s obstructive behavior over the course of numerous depositions, which it said “led to constant and useless bickering,” violated both Rule 3.2 (“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client and shall treat with courtesy and consideration all persons involved in the legal process.”) and Rule 8.4(d) (conduct prejudicial to the administration of justice).

Other Sources of the Civility Obligation

In addition to Rule 8.4(d) (conduct prejudicial to the administration of justice) and Rule 3.2 (reasonable efforts to expedite litigation), several other rules of professional conduct can be read to create a duty of professional civility. According to the 2Civility.org website, these rules are:

Rule 1.2(d):  “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

Comment 1 to Rule 1.3: “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client…The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Rule 1.4(a)(5): “A lawyer shall consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”

Rule 3.1: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law.”

Rule 3.4(a)-(e): “A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence … (b) falsify evidence … (c) knowingly disobey an obligation under the rules of a tribunal … (d) … make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request… (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant.”

Rule 3.5: “A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt a tribunal.”

Rule 4.1: “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”

Rule 4.4(a): “In representing a client, a lawyer 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.”

Rule 8.4(c): “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

Very recently, the ABA Standing Committee on Ethics and Professional Responsibility discussed the ways in which uncivil behavior can violate a 2016 addition to the model rules, Rule 8.4(g), which forbids harassment or discrimination by lawyers. Formal Opinion 493 (PDF), adopted July 15, 2020, states:

“[A] single instance of a lawyer making a derogatory sexual comment directed towards another individual in connection with the practice of law would likely not be severe or pervasive enough to violate Title VII but would violate Rule 8.4(g).”

The committee cited as an example Mullaney v. Aude, 730 A.2d 759, 767 (Md. Ct. Spec. App. 1999), a case in which an attorney was sanctioned for referring to opposing counsel as “babe” and making other sexually suggestive comments during a deposition. The court described the attorney’s behavior as “a crass attempt to gain an unfair advantage through the use of demeaning language, a blatant example of sexual deposition tactics.”

To the extent that lawyers were not already under an ethical obligation to refrain from sexually harassing behavior during depositions, Opinion 493 should put them on notice of yet another ethical basis to keep this form of incivility in check.

Promoting Civility

The ABA as well as many state bar regulators have noted with concern evidence of declining civility within the legal profession. Many regulators have created special commissions on lawyer civility or adopted civility codes (collected here by the National Center for State Courts and more extensively here by the ABA). Most of these codes are aspirational only, and cannot form the basis for sanctions against transgressors.

A handful of states (e.g., South Carolina, Florida, and California) added civility pledges to new lawyers’ oath of admission to the bar in recent years.

Finally, it may be that technology will play a role in promoting civility during depositions. With a remote deposition, the supervising judge or magistrate is “only a Zoom link away” from making a virtual appearance and quickly resolving objections or other disputed legal issues. Whether or not judges want to make themselves available to be on call for, or supervise, remote depositions remains to be seen. However, the prospect that a judge might review video of allegedly uncivil behavior and immediately craft a remedy could deter the most egregious manifestations of zealous advocacy gone wrong.