Sanctions for Spoon-Feeding Answers to Deposing Witness

• Pages: 14-15
• Date: 01 July 2022
• Author: Kelso L. Anderson
• Subject Matter: Civil Law

wo state bars have sus-

pended attorneys for con-

duct during virtual proceedings

deemed dishonest and prejudi-

cial to the administration of jus-

tice. In both circumstances, the attorneys

represented their clients in remote pro-

ceedings, coaching the clients on how

to answer questions through chat and

text messages. ABA Litigation Section

leaders conclude that each attorney’s

conduct was unethical and that the sanc-

tions were appropriate. It is not yet clear

whether ethical lapses in remote pro-

ceedings will become a trend in a post-

COVID environment or whether these

cases were simply outliers.

Witness Coaching via Text

In Florida Bar v. James, an attor-

ney represented an employer and its

employees in a worker compensation

case. A witness who worked for the

employer was deposed via telephone,

and all parties, including counsel,

attended via telephone from sepa-

rate locations. While the claimant’s

counsel was questioning the witness,

the now-suspended attorney for the

employer sent text messages to the wit-

ness regarding her testimony. The text

messages included coaching and advice

about how the witness should answer

the claimant’s counsel’s questions.

Claimant’s counsel heard typing and

asked the employer’s attorney whether

he was texting the witness during the

deposition. The attorney denied sending

any messages to the witness, falsely rep-

resenting that he was texting his daugh-

ter. After a break in the deposition and

after claimant’s counsel resumed ques-

tioning of the witness, the employer’s

attorney inadvertently sent texts to

claimant’s counsel that were meant for

the witness. The texts read as follows:

11:53 a.m.: Just say it anyway

11:53 a.m.: Just say 03/28

11:54 a.m.: In addition to the

03/28/2018 email containing the

signed release I show . . .

11:55 a.m.: Don’t give an abso-

lute answer

11:55 a.m.: All I can see at this time

but I cannot rule out existence

11:55 a.m.: It’s a trap

11:56 a.m.: Then say that is my

best answer at this time

As soon as the claimant’s counsel

realized that her opposing counsel was

coaching the witness, she concluded

the deposition and led motions for

in-camera inspection of the attorney’s

text messages. The attorney produced

two pages of text messages. In a subse-

quent proceeding, a judge ordered the

attorney to produce the text messages

he claimed to have sent to his daugh-

ter during the deposition. The attorney

was unable to produce said text mes-

sages, but instead of admitting that the

messages did not exist, he blamed tech-

nological incompetence.

Based on these facts, a judge con-

cluded that the attorney violated

Florida Bar Rule 4-3.4(a), which,

among other things, prohibits a law-

yer from “unlawfully obstructing

another party’s access to evidence.”

© Getty Image s

for Spoon-Feeding Answers

to Deposing Witness

By Kelso L. Anderson,

Litigation News

Associate Editor

14 | LITIGATION SECTION

Published in Litigation News Volume 47, Number 4, Summer 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

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.