Bad Deposition Conduct and Its Consequences
The State Bar of California has adopted Attorney Guidelines of Civility and Professionalism. Beginning in 2014, the oath for new lawyers to the bar was amended to reflect this growing emphasis on professionalism: "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity."
One area of litigation that is rife with the potential for incivility or abuse is depositions. Depositions can be a valuable tool to obtain evidence and learn the facts of the case in preparation for trial. Deposition testimony may be used, in limited circumstances, at trial in lieu of a live witness. Courts in many states treat depositions the same way as they do other court proceedings. Thus, court rules in those states require attorneys taking and defending depositions to conduct themselves as they would if the deposition were taking place in court before the judge.
Because depositions shape cases, attorneys can be tempted to be more aggressive than in other aspects of an action as they attempt to get in or keep out certain testimony for the record. Recent cases are replete with examples of attorneys engaged in improper deposition conduct, such as acting rudely toward opposing counsel or asserting improper objections to interrupt the flow of information. This type of conduct can be intentional—interrupting and intimidating opposing counsel—or unintentional.
Many courts have had enough. As a result, such behavior—whether intentional or not—has become unacceptable and even subject to sanctions.
With the affirmative civility requirements emerging in many states bringing more scrutiny by trial judges (and even some appellate courts), attorneys should re-examine their deposition conduct and err in favor of conducting themselves as they would in court. That means that both sides must cooperate with and be courteous to each other and to the deponents.
The failure to do so can subject an attorney to sanctions, and even lead to serious disciplinary action. In fact, many judges now expect opposing counsel to bring such conduct to the attention of the court so that problems can be resolved long before serious discovery disputes result in a trial delay.
One recent case illustrates the price of deposition misconduct. In that case, the highest court in Minnesota ruled that an attorney's deposition question to a deponent constituted serious misconduct. On Nov. 25, 2015, the Supreme Court of Minnesota imposed a 60-day suspension from the practice of law and a two-year supervised probation on an attorney who asked a court-appointed parenting consultant in a deposition about past allegations of sex with minors, without any good-faith basis to make the accusation. The court found that the inappropriate question was part of a "pattern of misconduct" by the attorney, and it acted correspondingly.
In addition to asking the inappropriate question, the attorney failed to submit records to a court within a 30-day deadline, which resulted in delay to the court system, failed to provide a client with her complete files for six months after she was discharged, and included material from other clients when the file was shipped to the client. The court ruled that considered together, the attorney's rules violations were serious and weighty.
The attorney testified during an evidentiary hearing that, prior to the deposition, he recalled the parenting consultant had been accused of sexual contact with minors. However, the attorney offered no evidence to support that recollection. The disciplinary board consequently found that the attorney's testimony was not credible, that the deposition question "appeared to be intended to embarrass and humiliate" the parenting consultant, and that the question was asked without a good-faith basis.
The disciplinary board concluded that the attorney had violated Minn. R. Prof. Conduct 4.4 (a) and 8.4(d). Minn. R. Prof. Conduct 4.4(a) provides in relevant part that, "in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass … or burden a third person," while Minn. R. Prof. Conduct 8.4(d) provides in relevant part that "it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice."
While good sense and professionalism are enough to avoid this kind of problem, below are some tips for deposition conduct that can help attorneys stay on the right side of the rules and the profession when participating in depositions.
Review Standing Orders Judges and courts often issue standing orders on proper deposition conduct. Review the standing orders of the judge or court for instruction on what constitutes improper deposition conduct. Such orders often provide rules on objections and instructions not to answer, scheduling, introduction of documents and exhibits, and requests for intervention by the court.
For example, the federal district court for the Northern District of California devotes an entire section of its Guidelines for Professional Conduct to depositions. The guidelines provide guidance on conduct during depositions, including scheduling, objections, and communications on the record. In sum, "A lawyer should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer."