Enforcing Civility: the Rules of Professional Conduct in Deposition Settings

• Publication year: 2004
• Pages: 75

33 Colo.Law. 75 Colorado Lawyer 2004.

2004, March, Pg. 75. Enforcing Civility: The Rules of Professional Conduct in Deposition Settings

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75

Vol. 33, No. 3, Pg. 75

The Colorado Lawyer
March 2004
Vol. 33, No. 3 [Page 75]

Specialty Law Columns
Professional Conduct and Legal Ethics
Enforcing Civility: The Rules of Professional Conduct in Deposition Settings
by Patrick T. O'Rourke

This column is sponsored by the CBA Ethics Committee Articles published in this column do not necessarily reflect the views of the Committee and may be those only of the individual authors

Column Editor

Susan Bernhardt, Denver, of Netzorg, McKeever, Koclanes & Bernhardt LLP - (303) 864-1000.

Patrick T. O'Rourke
About The Author:

This month's article was written by Patrick T. O'Rourke, Greenwood Village. He is a shareholder in the firm of Montgomery Little & McGrew, P.C., where he emphasizes litigation and the defense of licensed professionals, and a member of the CBA Ethics Committee -
(303) 773-8100, porourke@mlmpc.com.

This article discusses ways of addressing and preventing abusive conduct during deposition proceedings. It covers voluntary codes of professionalism, rules of civil procedure, and the Colorado Rules of Professional Conduct.

Courts and commentators often bemoan a perceived lack of civility among lawyers. Nonetheless, attorneys are rarely disciplined for acting discourteously. For many litigators, depositions are where they stand to win or lose their cases. Consequently, when the parties and their lawyers sit down at the deposition table, a possibility exists that the deposition will degenerate into a less-than-civil proceeding.

By way of example, reported cases include instances where attorneys have called each other derogatory names on the record and shouted and yelled during depositions.1 In one Minnesota case, a lawyer used ethnic slurs against opposing counsel.2 In Ohio, an attorney threatened to inflict bodily harm on the opposing counsel.3 These are just some of the reported cases.

This article explores the basis for potential discipline arising from misconduct during depositions. It describes voluntary codes of professionalism and rules of civil procedure. As discussed in this article, when a lawyer's conduct is beyond the bounds of civility, rules of professional conduct also allow for discipline.

Sources for Curbing
Uncivil Conduct

Understanding that lawyers might behave badly in depositions is one thing. Stopping abusive behavior is another. Various sources provide guidance about how lawyers should behave; others create procedural rules that parties might seek to enforce in a particular case. This article briefly touches on voluntary codes and rules of civil procedure as mechanisms for promoting civility in the deposition process.

In the final analysis, however, there are times when a lawyer's conduct has gone so far beyond the bounds of civility and decency that the courts or disciplinary agencies must take disciplinary action against an attorney. Although disciplinary actions are the exception rather than the norm, attorneys should expect to see heightened enforcement of rules of professional conduct if attorneys and judges become convinced that other measures have not been effective. Because this represents an emerging trend, the majority of the article focuses on the potential interplay between rules of professional conduct and the deposition process.

Voluntary Codes of
Professionalism

Attorneys generally recognize that the judicial system cannot operate properly when attorneys act unprofessionally.4 To combat this problem, various attorneys' associations have developed voluntary codes of professionalism for their members.

For example, members of the Denver Bar Association have pledged to treat each other with courtesy and respect.5 In the deposition setting, this requires attorneys to conduct themselves in the same manner as though they were appearing in court.6 This includes refraining from behavior that is purposely offensive, demeaning, harassing, or intimidating.7

Similarly, in 2002, the American College of Trial Lawyers ("College") published its Code of Pretrial Conduct which was developed because of "widespread abuse of pretrial procedures"8 and the College's belief that trial lawyers can ensure the proper administration of justice only...