Part 2 Ethical Obligations and the Deposition (1.0 to 2.35)

Index

Section 1.0 I. Ethical Framework In State And Federal Courts
Section 1.1 A. Admission And Regulation Of Attorneys In New York State
Section 1.2 B. Discipline Of Attorneys In Federal Court
Section 1.3 1. Local Rules—Southern And Eastern Districts
Section 1.4 2. Local Rules—Northern And Western Districts
Section 1.5 C. Legal Status Of Rules Of Professional Conduct
Section 1.6 II. Professional Practice And Ethical Duty In Preparing Witnesses For Deposition
Section 1.7 III. Civil And Criminal Limitations On Witness Preparation
Section 1.8 A. Fundamental Civil Limitations
Section 1.9 B. Fundamental Criminal Law Limitations
Section 1.10 IV. Need For And Goals Of Preparing Deposition Witnesses
Section 1.11 A. Ethical Preparation Is Proper And Necessary
Section 1.12 B. Aims Of Witness Preparation
Section 1.13 V. Ethically Improper Preparation
Section 1.14 A. Directly Persuading Witness To Lie
Section 1.15 B. Indirectly Inducing Witness To Lie
Section 1.16 VI. Boundaries Of Ethically Proper Preparation
Section 1.17 A. Witness Preparation And Ethical Uncertainty
Section 1.18 1. Some Proposed Shorthand Guides To Right Conduct
Section 1.19 2. The Principal Goal: Truthful Testimony
Section 1.20 B. Key Preparation Techniques And The Rules Of Ethics
Section 1.21 1. Reviewing The Witness's Recollection And Probable Testimony
Section 1.22 2. Reviewing The Factual Context Of The Prospective Testimony
Section 1.23 3. Suggestive Or Leading Questions By Counsel
Section 1.24 4. Discussing The Law With The Witness
Section 1.25 5. Refreshing The Witness's Recollection
Section 1.26 6. Advising The Witness About How To Answer Questions
Section 1.27 7. Advice Regarding The Wording Of The Witness's Account
Section 1.28 8. Rehearsing The Deposition
Section 1.29 9. Preparation Regarding Demeanor
Section 1.30 C. Duty To Prepare Zealously And Ethically
Section 1.31 1. Proper Coaching
Section 1.32 2. Preparation And The Duty To Advocate Vigorously
Section 1.33 D. The Moussaoui Case
Section 1.34 E. Assisting The Client During Breaks And Recesses In Depositions
Section 2.0 I. Planned Or Actual Perjury At A Deposition By A Client
Section 2.1 A. Declining An Improper Representation
Section 2.2 B. Duty In Case Of Planned Future Perjury
Section 2.3 1. Application Of Relevant Ethical Rules To Depositions
Section 2.4 2. Lawyer's Knowledge Of Planned Future Perjury
Section 2.5 3. Action Required When Lawyer Knows Of Plan To Commit Perjury
Section 2.6 C. Duty In Face Of Perjury Committed
Section 2.7 1. When Duty To Act Arises
Section 2.8 2. Specific Steps Counsel Must Take
Section 2.9 A. Remonstrating Confidentially With Client
Section 2.10 B. Further Remedial Action If Needed
Section 2.11 I. Withdrawal
Section 2.12 II. Disclosure To Court Or To Other Side
Section 2.13 II. Planned Or Actual Perjury At A Deposition By A Witness
Section 2.14 A. Perjury Of A Friendly Witness
Section 2.15 B. Perjury By The Adverse Party Or A Witness Friendly To That Party
Section 2.16 III. Abuse Of Deposition For Improper Purposes
Section 2.17 IV. Communications With Unrepresented Persons
Section 2.18 V. Representing Party And Nonparty Witness In Same Case At Deposition
Section 2.19 A. Relevant Rules Regarding Adverse Interests
Section 2.20 B. Case Law Regarding Concurrent Representations
Section 2.21 1. Former Employees Of A Corporation Or Other Entity And Unrelated Persons As Witnesses
Section 2.22 2. Current Employees Of A Corporation Or Other Entity As Nonparty Witnesses
Section 2.23 3. Written Consent From Clients
Section 2.24 4. Communications With Nonparty Witnesses
Section 2.25 C. Improper Solicitation Of Nonparty Witnesses
Section 2.26 VI. Handling Abusive Personal Conduct During Depositions
Section 2.27 A. Ethical Standards
Section 2.28 1. Relevant Rules
Section 2.29 2. Civility And Vigorous Representation Are Entirely Compatible
Section 2.30 3. Relevant Case Law
Section 2.31 A. Abusive And Discourteous Behavior By Attorney
Section 2.32 B. Abusive And Discourteous Behavior By Witness; Duty Of Counsel For Witness
Section 2.33 C. Victim's Response: Two Wrongs Don’t Make A Right
Section 2.34 B. Standards Of Civility
Section 2.35 VII. Behaving Honestly And Respecting The Court And Its Orders