Shari Klevens and Alanna Clair, Dentons. Shari Klevens (left) and Alanna Clair, Dentons. (Courtesy photo)

Taking and defending depositions is a regular part of litigation. It can be a helpful tool to develop facts, but it also is an area rife for potential abuse by—or risk for—attorneys. There are a number of high-profile decisions in which attorneys have been sanctioned or punished by courts for improper conduct during a deposition. Thus, being ignorant of or intentionally disregarding the rules governing proper deposition conduct can create serious risk for attorneys and their clients.

Sanctions, which can range from monetary fines and fees to a bar grievance, can be severe. The cases in which sanctions are imposed generally make clear that an attorney’s deposition conduct is guided by court rules and ethical codes. However, appropriate deposition conduct typically involves more than just refraining from engaging in contentious conduct with opposing counsel and opposing witnesses. Below are some tips and guidance for attorneys regarding interactions with their own witnesses before and during depositions.

Preparing Witnesses

A deposition, which can already be a stressful situation, can be made even more stressful if the witness is not well prepared. However, it is critical that attorneys stay on the right side of the ethical rules in preparing witnesses to provide testimony. Preparing any witness for deposition is an important part of an attorney’s role as zealous advocate, but knowing the boundaries of acceptable preparation is equally important. That is because questionable or even sanctionable conduct can arise long before the witness takes the oath and testifies.

Although predeposition meetings and prep sessions are often helpful to prepare a witness, most attorneys will take steps to avoid inadvertently (or intentionally) “coaching” a witness. Similarly, assisting a witness in fabricating responses to anticipated questions or implicitly suggesting that the witness withhold or alter the truth may run afoul of the attorney’s duty of candor.

Rule 3.3 of the Georgia Rules of Professional Conduct states that a “lawyer shall not knowingly … offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.” The comments state that Rule 3.3 applies whenever the lawyer is representing a client in an ancillary proceeding, such as a deposition. “Thus … a lawyer [must] take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.”

If a client testifies falsely—and the attorney knows that the testimony is false)—comment [10] to the rule dictates the “reasonable remedial measures” that the attorney must take. The lawyer must first “remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.” Failing that, the lawyer can consider withdrawing from the representation or, if withdrawal is not permitted, must disclose to the court sufficient information “as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6.”

Conferences With Witnesses During Depositions

May the attorney confer with the deponent during the deposition? This is one grey area of deposition conduct that varies by jurisdiction. Some courts follow Hall v. Clifton Precision, 150F.R.D. 525 (E.D. Pa. 1993), which draws a bright-line, “no conference” rule. The Hall court reasoned in part that “private conferences … tend, at the very least, to give the appearance of obstructing the truth.”

Most jurisdictions follow a less strict approach, prohibiting conferences only when a question is pending. Others permit conferences during deposition breaks, but caution that the subject matter discussed is discoverable unless otherwise privileged.

In Georgia, some courts have entered orders containing deposition guidelines that prohibit private conferences between deponents and their attorneys during the actual taking of the deposition, except for the purpose of determining whether a privilege should be asserted.

If the court or jurisdiction is silent on the matter, though, Rule of Professional Conduct 3.4 generally prohibits assisting a witness to testify falsely or to obstruct another party’s access to evidence. Comment [1] to the rule notes that “improperly influencing witnesses” is a threat to fairness in the adversary system.

If further instruction would be helpful to the parties to litigation, they can consider whether it would be appropriate to request that the court enter an order setting forth deposition guidelines that address attorney-client conferences during a deposition.

Follow the Rules

Before attending a deposition, it is also helpful to review the relevant rules governing deposition scope, nature of objections and related motions. Without the presence of a judge, attorneys are often expected to self-regulate and conduct the deposition as they would at trial under the rules of evidence. Identifying and understanding the relevant rules is essential to ensuring compliant deposition conduct.

Rules 30 and 32 of the Federal Rules of Civil Procedure set forth some of the type and nature of permissible objections, provide the basis for motions to terminate or limit a deposition and address waiver of certain objections. Georgia’s statutory analogs are O.C.G.A. 9-11-30 and 9-11-32, respectively. It is advisable also to check the jurisdiction’s local rules for deposition guidelines or procedure.

However, it can be difficult to draw bright line rules around what constitutes proper deposition conduct. However, by taking steps to become familiar with the rules, attorneys can reduce the risk of sanctions, a deposition do-over, embarrassment or an unhappy client.

Shari L. Klevens is a partner at Dentons US in Atlanta and Washington, D.C., and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team.

Alanna Clair, also a partner at Dentons US in Washington, focuses on professional liability and insurance defense. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance” and the upcoming 2019 edition of “Georgia Legal Malpractice Law.”