A recent case out of New England serves as a reminder for lawyers practicing in all jurisdictions that witness coaching, whether in a remote environment or in person, violates the ethical rules. After coaching a client during a remote deposition, a lawyer practicing in Massachusetts was faced with disciplinary action for his conduct. The Massachusetts Board of Bar Overseers of the Supreme Judicial Court ("BBO") issued a public reprimand and noted that although disciplinary actions relating to remote proceedings are relative anomalies, their oversight is active and expected to increase over time.

Factual Background of the Incident

During a remote deposition, the lawyer and client were in the same room with masks on claiming it was due to COVID-19 protocols, despite opposing counsel's objection. Opposing counsel confronted the witness and her attorney, raising concerns of an ethical violation, which the attorney adamantly rejected, and the deposition ensued. The evidence showed that after opposing counsel asked each question, the lawyer whispered the answers to the client, who repeated them. Despite the lawyer's denial of this violation during the deposition, the recording clearly showed the lawyer coaching and feeding answers to the witness. In fact, the BBO found over fifty violations.

Opposing counsel filed a motion for sanctions in the United States District Court for the District of Massachusetts. During the hearing, the accused lawyer admitted to coaching the witness. The District Court disqualified the lawyer from the case, recognizing that the gravity of this reprimand was necessary and appropriate under the circumstances to convey the lack of tolerance for such misconduct. In addition, the lawyer was referred to a support group to complete counseling on better management of emotions and judgment in the face of adversity. Moreover, the Court ruled that opposing counsel may be permitted to play the recorded exchanges to the jury in order to allow an assessment of credibility. The Court also found that the lawyer had violated professional conduct rules, specifically Rule 3.4(c) of the Massachusetts Rules of Professional Conduct, for knowingly disobeying an obligation under the rules of a tribunal and impeding the fair examination of a deponent. Rule 3.4(c) states that sanctions may be granted against a lawyer who “impedes, delays, or frustrates the fair examination of a deponent.”

Finally, the judge determined that the attorney violated Mass. R. Prof. C.8.4(h), which prohibits “other conduct that adversely reflects on his or her fitness to practice law.” Sanctions imposed on the lawyer included paying opposing counsel's legal fees, forfeiting approximately $65,000 in legal fees, and appointing substitute counsel at the firm's own expense.

The Board's Decision

Considering the lack of precedent on the issue of witness coaching at remote depositions in Massachusetts, the BBO relied on case law from other jurisdictions to determine an appropriate sanction. The BBO looked favorably on the lawyer's admission of wrongdoing when confronted by the court and the absence of premeditation. Consequently, the BBO decided to issue a public reprimand, but warned that future cases of misconduct in remote settings may not be given the same leniency.

Lessons Learned: Moving Forward

This case serves as a reminder that coaching a witness during a deposition is never acceptable. Before the COVID-19 pandemic, identifying witness coaching was more straightforward. Courts have never been tolerant of inappropriate tactics that include suggestive objections, such as the overuse of objections as to the form of the question, repeated interjections or objections as to vagueness, speculation or ambiguity, and additional comments which include instructing a witness that they "can answer if you know", which suggests to the witness that they may not know the answer and invites them to avoid responding to otherwise clear and concise questions. In the evolving era of remote lawyering, where virtual depositions have become a common practice, attorneys must take extra care and adapt to the evolving landscape of professional conduct. In remote depositions, attorneys must be even more cognizant of the potential for misconduct. The rules governing professional conduct apply uniformly, regardless of whether the legal proceeding is remote or in-person. Attorneys should always be mindful of the fact that their duty is not only to their clients, but also to comply with the rules of professional conduct and maintain the integrity of the legal process. As the legal profession continues to adapt to new technology and remote opportunities, it is imperative that lawyers continue to remain aware of their ethical responsibilities during depositions and other legal proceedings.

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