How to Conduct Ethical Depositions

Defending or taking depositions is something common when dealing with litigation. Developing facts can be a helpful tool, but potential abuses by a lawyer or the potential risks for them can be an issue. There are several high-profile decisions where courts have punished lawyers for showing improper conduct in depositions. As such, disregarding the rules which govern proper deposition conduct may pose serious risks for lawyers and their clients.

The sanctions can be severe, and they can range from fines to bar grievances. Appropriate conduct during a deposition means more than simply refraining from contentious conduct with the opposing witnesses or their attorneys. Let’s look at some tips that should help guide lawyers properly interact with their own witnesses both preceding a deposition and during.

Preparing Your Witnesses

Depositions can already be stressful situations, but they can be even more stressful if witnesses are not properly prepared. When preparing witnesses, it is imperative that attorneys follow certain ethical rules. Preparation is important but knowing the boundaries which should be respected is just as important. The reason for that is that inappropriate conduct can arise even before a witness takes to the stand.

Predeposition meetings are always helpful in preparing witnesses but most attorneys take certain steps to ensure that they do not unintentionally coach witnesses. Helping witnesses fabricate responses to questions they may receive or suggesting that they withhold or even alter certain facts may conflict with an attorney’s duty to be honest.

The ABA Model Rules of Professional Conduct state in Rule 3.3 that a “lawyer shall not knowingly […] offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the 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.” The comments state that this rule applies whenever an attorney is representing a client in ancillary proceedings, such as depositions. “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 provides false testimony and the attorney knows this, comment [10] to the rule provides the “reasonable remedial measures” which the attorney is obliged to take. First, they can “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.” Otherwise, the attorney may withdraw from the representation. If that is not permitted, they must address the court and disclose enough 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.”

Having a Conference with the Witness During the Deposition

Conferring with the deponent during a deposition is a grey area that varies depending on jurisdiction. There are some courts which follow Hall v. Clifton Precision, 150F.R.D. 525 (E.D. Pa. 1993) which completely forbids it.

Many jurisdictions don’t take such a strict approach and they forbid conferences only in situations where a question is pending. Other jurisdictions allow conferences during breaks from the deposition but warn that the subjects discussed are discoverable unless they are privileged.

There are some courts in Georgia which have entered orders that contain guidelines for depositions which do not allow private conferences between a deponent and their lawyer during the deposition, unless the reason is establishing whether a privilege should be asserted or not.

If a court or jurisdiction has no specific rules regarding the matter, Model Rule of Professional Conduct 3.4 typically prohibits any attorney from assisting their clients in providing false testimony or obstructing other parties from accessing evidence. Comment [1] notes that “improperly influencing witnesses” threatens fairness in the adversary system.

If the parties to litigation may find further instruction helpful, they have the possibility of requesting that the court enter an order which sets forth deposition guidelines which address conferences between attorneys and their clients during depositions.

Always Obey the Rules

It is always a good idea to review any relevant rules governing a deposition’s scope, nature of objections, and related motions before attending a deposition. Without a judge being present, an attorney is typically expected to self-regulate and conduct depositions as they normally would at trial. In order to ensure compliant deposition conduct, understanding all the relevant rules is essential.

The Federal Rules of Civil Procedure’s rules 30 and 32 establish some types of permissible objections, while also providing the basis for motions to either limit or terminate a deposition and addressing the waiver of some objections. It’s always best to consult your jurisdiction’s local rules for any guidelines or procedures regarding depositions.

Drawing clear lines around what constitutes proper deposition conduct and what doesn’t can be difficult. However, attorneys can take steps to familiarize themselves with the rules and as a result, reduce their risks of sanctions, embarrassment, or providing unsatisfactory representation to their clients.