Court Sanctions Attorney for Feeding Deponent Answers

• Pages: 9-9
• Date: 01 July 2023
• Author: William H. Newman
• Subject Matter: Civil Law

Published in Litigation News Volume 48, Number 4, Summer 2 023. © 2023 by the Amer ican Bar Association . Reproduced with pe rmission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in an y

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

n attorney who quietly pro-

vided answers to his client

during her remote video

deposition violated ethics

rules, a court has held. In

Barksdale School Portraits v. Williams,

the court disqualif‌ied the defendant’s

counsel and referred him to the presid-

ing judge of the district for disciplin-

ary proceedings. However, the court

denied the plaintis’ motion to dismiss

the defendant’s defenses and counter-

claims as a sanction for the attorney’s

misconduct. ABA Litigation Section

leaders believe that cases like this one

are rare but that attorneys can take

steps to avoid these situations.

Like many depositions during the

pandemic, the Barksdale deposi-

tion took place remotely over video.

Defense counsel sat in the same con-

ference room as his client as she testi-

f‌ied. Despite the plaintis’ objections,

they both wore masks during the

deposition. Over 50 times, defense

counsel used his mask to hide the fact

that he was telling his client how to

answer questions.

The U.S. District Court for the

District of Massachusetts held that

there was “little question” that coun-

sel’s aid constituted misconduct

because it “plainly frustrated plain-

tis’ rights to a fair examination.” It

also found that the fact that defense

counsel spoke to his client repeatedly

made the misconduct worse because

it showed he did not suer from “a

momentary or single lapse of judg-

ment.” Lastly, it held that the miscon-

duct was particularly serious because

it undermined “the eectiveness of

remote deposition proceedings,” on

which the court system had relied

heavily during the pandemic.

Although defense counsel admitted

oering answers to his client, he argued

that sanctions were inappropriate. First,

he claimed that opposing counsel had

also violated discovery rules, and so

it would be unfair to only punish one

Court Sanctions Attorney for Feeding

Deponent Answers

side. But the court refused to consider

opposing counsel’s conduct as a miti-

gating factor. Second, defense counsel

claimed that his client always provided

truthful answers, even if they followed

his prompts. But the court rejected that

defense too, because it assumed that

counsel’s “understanding of the facts is

authoritative.”

The court sanctioned the attorney

by disqualifying him from continuing

to participate in the case. It recog-

nized that the sanction was harsh as

it denied the defendant the counsel

of her choosing and it carries a repu-

tational stigma. But it did so because

allowing him to continue “would sug-

gest a modicum of tolerance for [his]

conduct where there is none.” It also

referred him to the district’s presiding

judge for disciplinary proceedings.

The plaintis also sought to punish

the defendant directly by requesting

the dismissal of her defenses and coun-

terclaims. Alternatively, they sought

to prohibit her from testifying at trial

about the subjects for which she used

her counsel’s answers and sought an

adverse inference against her at trial

on those subjects. The court, how-

ever, noted that dismissal as a sanc-

tion is only appropriate in response to

“extreme” misconduct. While the court

found the defendant “complicit” in her

attorney’s misconduct, it was counsel

who was primarily at fault and the cli-

ent was merely “following her counsel’s

lead.” Accordingly, the court found

dismissal to be too severe a sanction.

And it decided the other proposed

sanctions against her would improp-

erly punish her for counsel’s actions.

Instead, the court permitted the plain-

tis to play a video at trial of the defen-

dant repeating her counsel’s answers to

enable a jury to assess her credibility.

“At least to some degree, Zoom

depositions are here to stay,” observes

Pilar G. Kraman, Wilmington, DE,

cochair of the Litigation Section’s The

Woman Advocate Committee. “The

By William H. Newman , Litigation News Associate Editor

vast majority of lawyers are ethical and

are not going to intentionally obstruct

a deposition in this way.” Kraman notes.

The misconduct in Barksdale is “not

something I’ve come across or some-

thing I would be concerned about

with the lawyers I work with,” explains

Joseph V. Schaeer, Pittsburgh,

PA, cochair of the Section’s Pretrial

Practice & Discovery Committee.

There are precautions litigators can

take to address possible abuse, such as

having the court reporter in the same

room as the witness and counsel, since

“having another person in the room

could deter that misconduct,” accord-

ing to Ashley J. Heilprin, New Orleans,

LA, cochair of the Section’s Pretrial

Practice & Discovery Committee. And

if an attorney observes improper com-

munications, she can “recite the facts

on the record during the deposition,

and try to get the court involved via

telephone,” says Ali Degan, Iselin, NJ,

cochair of the Section’s Minority Trial

Lawyer Committee.

A less brazen method for lawyers to

improperly communicate with witnesses

during a deposition is through texting or

emailing. One precaution is to “agree the

chat function is disabled” on the video-

conference software, says Kraman. And

another is to ask the witness “if they

have any other applications open on

their computer and to close them if they

do,” adds Schaeer.

RESOURCES

Erin C . Asborno, “A Guide to the Ethi cal

Preparation o f Witnesses for Deposi tion

and Trial,” Trial Prac. (De c. 13, 2011).

Kimb erly L. Beck, “Ti ps and Strategies to

Improve Your Dep ositions,” Prods . Liab.

Litig. (Apr. 9, 2019).

Mihai Vrasmasu and Vanessa Outt,

“Five Tips for Con ducting Remote Video

Depositions,” P retrial Prac. & Discover y

(July 31, 2020).

SUMMER 2 023 • VOL. 48 NO. 4

9 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORLD