Rarely a month goes by in which legal industry publications don't report on shocking deposition conduct by fellow members of the bar. Inevitably, attorney misconduct invites a sanctions motion, which often results in an order censuring the offending attorney.
Media outlets recently reported on a case involving a plaintiff's lawyer who not only interrupted a deposition more than 90 times, but baselessly accused defense counsel of engaging in a racist attack against the deponent. The court granted defense counsel's motion for sanctions and ordered plaintiff's counsel to pay $4,700 as a sanction. Scott-Iverson, v. Independent Health Association, No. 13-CV-451V(F), 2017 WL 35453 (W.D.N.Y., Jan. 04, 2017).
Sanctions, which can range from monetary fines and fees to a bar grievance, can be severe. The cases in which sanctions are imposed generally make clear that an attorney's deposition conduct is guided by court rules and ethical codes. However, appropriate deposition conduct typically involves more than just refraining from engaging in contentious conduct with opposing counsel and opposing witnesses. Below are some tips and guidance for attorneys regarding interactions with their own witnesses before and during depositions.
Encourage your witness to be truthful
Whether a deposition involves heated arguments between counsel or a frustrated witness can be a direct result of the scope and depth of the defending attorney's preparation of that witness. Preparing any witness for deposition is an important part of an attorney's role as zealous advocate, but knowing the boundaries of acceptable preparation is equally important. Most attorneys facing this issue are wary of their ethical obligations when preparing a witness for deposition. Questionable or even sanctionable conduct can arise long before the witness takes the oath and testifies.
Indeed, pre-deposition meetings, while beneficial, also can present opportunities to improperly "coach" a witness. Further, assisting a witness in fabricating responses to anticipated questions or implicitly suggesting that the witness withhold or alter the truth likely runs afoul of the attorney's duty of candor.
Rule 3.3 of the Georgia Rules of Professional Conduct states that a "lawyer shall not knowingly … offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures." The comments state that Rule 3.3 applies whenever the lawyer is representing a client in an ancillary proceeding, such as a deposition. "Thus … a lawyer [must] take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false."
If a client testifies falsely (and the attorney knows that the testimony is false), comment  to the rule dictates the "reasonable remedial measures" that the attorney must take. The lawyer must first "remonstrate with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the withdrawal or correction of the false statements or evidence." Failing that, the lawyer can consider withdrawing from the representation or, if withdrawal is not permitted, must disclose to the court sufficient information "as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6."
Conferences with witnesses during depositions
May the attorney confer with the deponent during the deposition? This is one grey area of deposition conduct that varies by jurisdiction. Some courts follow Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), which draws a bright-line, "no conference" rule. The Hall court reasoned in part that "private conferences … tend, at the very least, to give the appearance of obstructing the truth."
Most jurisdictions follow a less-strict approach, prohibiting conferences only when a question is pending. Others permit conferences during deposition breaks, but caution that the subject matter discussed is discoverable unless otherwise privileged.
In Georgia, some courts have entered orders containing deposition guidelines that prohibit private conferences between deponents and their attorneys during the actual taking of the deposition, except for the purpose of determining whether a privilege should be asserted.
If the court or jurisdiction is silent on the matter, though, Rule 3.4 prohibits assisting a witness to testify falsely or to obstruct another party's access to evidence. Comment  to the rule notes that "improperly influencing witnesses" is a threat to fairness in the adversary system.
If further instruction would be helpful to the parties to litigation, they can request that the court enter an order setting forth deposition guidelines that address attorney-client conferences during a deposition.
Before attending a deposition, it is also helpful to review the relevant rules governing deposition scope, nature of objections, and related motions. Without the presence of a judge, attorneys are expected to self-regulate and conduct the deposition as they would at trial under the rules of evidence. Identifying and understanding the relevant rules is essential to ensuring compliant deposition conduct.
Rules 30 and 32 of the Federal Rules of Civil Procedure set forth the type and nature of permissible objections, provide the basis for motions to terminate or limit a deposition, and address waiver of certain objections. Georgia's statutory analogs are O.C.G.A. 9-11-30 and 9-11-32, respectively. It is advisable also to check the jurisdiction's local rules for deposition guidelines or procedure.
Knowing the rules is one thing. Following them is another. Although it may be difficult to determine the best course of conduct in the gray areas, the risk of not following the rules is high. Unethical conduct can result in sanctions, a deposition do-over, embarrassment and an unhappy client.