Avoiding ethical snares when defending depositions

Depositions can be contentious. Although attorneys are advised against conducting a deposition in a way that violates the ethical rules by, for example, bullying witnesses or attacking opposing counsel, attorneys do not always stay within this framework. Overly aggressive attorneys are periodically sanctioned or penalized for pushing the ethical envelope when taking a deposition.

Although often the focus is on the attorney taking the deposition, there are also rules that govern the conduct of the attorney defending the witness at the deposition. These rules and obligations may even arise before the deposition begins or after it concludes. The obligations of the defending attorney often require more than simply refraining from contentious sparring with opposing counsel during the deposition.

Below are some tips for attorneys in navigating the ethical issues when preparing witnesses in advance of depositions and for proper conduct during the actual depositions.

Learn the Rules

It is helpful to review the relevant rules governing the scope of depositions and the nature of permissible objections before attending or even preparing for a deposition. Many courts have local rules that govern discovery, including specific guidelines or instructions relating to depositions. For example, Subsection (e) of the Appendix 3.A. to the Los Angeles Superior Court Local Rules (Guidelines for Civility in Litigation) specifically address depositions, including scheduling, conduct at, and objections during, depositions. Further, the Federal Rules of Civil Procedure – specifically Rules 30 and 32 – set forth the type and nature of permissible objections, including waiver of objections, as well as the requirements for terminating or limiting a deposition.

Attorneys are often expected to self-regulate during the deposition because there will be no judge or intermediary in the room. To that end, attorneys are generally trusted to conduct the deposition as if it were before the court. Identifying and understanding the applicable rules is an important first step to ensure ethical deposition preparation and conduct.

Preparing Witnesses for a Deposition

Preparing any witness for a deposition is a critical task. Indeed, sanctionable conduct or conduct giving rise to further scrutiny may arise well before the witness testifies. The scope and depth of the defending attorney’s preparation of the witness potentially dictates whether a witness is sufficiently prepared, which can itself impact that party’s claims or defenses (or even the strength of the attorney-client relationship).

Meetings with witnesses in advance of a deposition are undoubtedly beneficial. But they do have the potential to create risk. Risks can arise if a lawyer improperly pressures a witness to testify in a way that is not truthful, or if the witness suggests they intend to testify falsely at the deposition. This can implicate the attorney’s duty of candor.

Rule 3.3 of the California Rules of Professional Conduct govern a lawyer’s duty of candor toward the tribunal. Comment [1] to the rule explains that this duty applies whenever the lawyer is representing a client in “ancillary proceedings such as a deposition.” Pursuant to subsection (a)(3), a “lawyer shall not … offer evidence that the lawyer knows to be false. If a lawyer … has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”

Comment [5] states that reasonable remedial measures also include explaining the lawyer’s obligations to the client, refusing to offer false evidence, seeking permission to withdraw, and “remonstrating further with the client to take corrective action that would eliminate the need for the lawyer to withdraw.” Comment [4] also explains that, “[i]f a lawyer knows that a client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered and, if unsuccessful, must refuse to offer the false evidence.” However, a lawyer is not required to take remedial measures that require disclosure of confidential client information protected under Rule 1.6 and Section 6068(e) of the Business and Professions Code.

Although, as set forth in comment [8], “[a] lawyer’s compliance with the duty of candor imposed by this rule does not require that the lawyer withdraw from the representation[,] [t]he lawyer may . . . be required by rule 1.16 to seek permission of the tribunal to withdraw if the lawyer’s compliance with this rule results in a deterioration of the lawyer-client relationship such that the lawyer can no longer competently and diligently represent the client,” or where continued representation would violate the rules. Thus, if a lawyer becomes aware that a client intends to testify falsely, the lawyer may have obligations to withdraw or take other action.

Conferring During the Deposition

One issue that attorneys and courts continue to grapple with is whether the defending attorney may confer with the deponent during the deposition. The parameters of permissible conference tend to vary by jurisdiction. Some courts, including some California federal courts, follow a bright line “no conference” rule at any point during a deposition unless it is for the purpose of determining whether a privilege applies. Others follow a less stringent approach that only prohibits conferences when a question is pending, which could result in an attorney coaching a witness in how to testify. Others permit conferences during breaks but caution that the subject matter discussed is discoverable unless otherwise privileged.

Local court rules may also provide guidance. For example, the Los Angeles Superior Court Local Rules expressly provide that, “[w]hile a question is pending, counsel should not, through objections or otherwise, coach the deponent or suggest answers.” Appendix 3.A.(e)(8). Similarly, standing orders in a case may include guidance for depositions, including about whether or when a witness may confer with counsel.

If the court or jurisdiction is silent on the matter, Rule 3.4 of the California Rules of Professional Conduct prohibits assisting a witness to testify falsely or to unlawfully obstruct another party’s access to evidence. In the event that further instruction would be helpful, the parties may consider whether to preemptively request guidance from the court.

Failing to understand and adhere to these ethical rules presents significant risks. Indeed, violations for unethical conduct may result in sanctions, a second deposition, or an unhappy client. Therefore, it is helpful for attorneys to fully appreciate their ethical obligations in preparing for and defending witnesses at depositions.