An attorney who surreptitiously fed answers to his client – roughly 50 times during a six-hour remote deposition, according to court documents – has been given a public reprimand by the Massachusetts Board of Bar Overseers. Although arguably less egregious instances of witness coaching have been sanctioned with license suspensions, the consensus view in the Massachusetts case appears to be that this particular attorney has suffered enough.

The suffering?

First, the attorney was removed from the case, by court order, as a sanction for his unethical witness coaching, resulting in the loss of a $65,000 legal fee.

Second, the attorney spent uncompensated time training the new attorneys who took up the case.

Third, the attorney paid $22,000 in legal fees to the opposing counsel who filed the sanctions motion.

Fourth, the attorney had the ignominious distinction of being the subject of numerous legal news articles reporting his behavior, which turned out to be unusually newsworthy because his deposition performance yielded one of the very first judicial opinions addressing witness coaching during a remote deposition that took place during the COVID-19 pandemic.

Coaching Undermines Value of Remote Depositions

The case that gave rise to the Massachusetts ethics proceeding, Barksdale School Portraits LLC v. Williams, 339 F.R.D. 341 (D. Mass. 2021), has been in the news for over two years. U.S. District Court Judge Indira Talwani’s opinion imposing sanctions on the attorney has the distinction of being one of the first judicial opinions discussing witness coaching during remote depositions.

The American Bar Association recently weighed in on the ethics of witness coaching during depositions. ABA Formal Opinion 508 (The Ethics of Witness Coaching) urged attorneys involved in remote depositions to both “prevent and detect incidences of unethical coaching conduct.” The ABA advised attorneys to establish ground rules – by way of remote deposition protocols, for example – in order to discourage unethical conduct during remote depositions.

Unfortunately, the problematic deposition in the Barksdale School Portraits case predated the ABA’s guidance by two years. The deposition took place on April 28, 2021, a time during the COVID-19 pandemic when remote depositions were strongly encouraged by court officials but, for the most part, unregulated except for whatever safeguards could be worked out among attorneys in a particular case.

The Barksdale School Portraits deposition was conducted without any safeguards against witness coaching.

Present in the conference room where the witness testified was the witness, her husband, and her attorney. All three individuals, citing health concerns, wore masks during the deposition. No one else was present in the conference room. Another salient fact was that the witness’s attorney repeatedly muted his microphone during deposition, according to the opposing attorney’s motion for sanctions. Both of these circumstances – mask wearing and muting the attorney’s microphone – made it difficult for opposing counsel to prevent or detect the rampant witness coaching that occurred during this deposition.

“Although arguably less egregious instances of witness coaching have been sanctioned with license suspensions, the consensus view in the Massachusetts case appears to be that this particular attorney has suffered enough.”

Judge Talwani, who removed the attorney from the case and ordered that the jury should be allowed to see the extent of the witness coaching that occurred, remarked that the attorney’s actions “were not a momentary or single lapse of judgment but were repeated numerous times over the course of the day.” This conduct, the judge commented, “has the effect of sowing seeds of doubt in the minds of litigators and judges as to the effectiveness of remote deposition proceedings, which have become an important tool of the court during the public health crisis.”

Attorney Paid Dearly for His Behavior

However, when the matter reached U.S. District Judge Leo T. Sorokin for a ruling on professional discipline, the ethical heat on the attorney had cooled considerably. Judge Sorokin – noting the size of the legal fee forfeited by the attorney, his admission that his conduct was wrong, the widespread negative reputational effects of news reporting on his behavior, and the fact that the attorney had conducted several other depositions in the case without drawing an accusation of witness coaching – decided that a referral to an organization called Lawyers Concerned for Lawyers was all the sanction necessary. Judge Sorokin didn’t even refer the case to Massachusetts bar authorities.

Yet somehow the Massachusetts Bar Counsel’s office heard about it, and they filed a petition for discipline. Like Judge Sorokin, they appeared to believe that the attorney had suffered enough. Bar counsel stipulated that a public reprimand would be sufficient. No license suspension is necessary. Taking a very forgiving attitude toward the attorney’s behavior, the Board of Bar Overseers, on Nov. 6, agreed.

Three Leading Cases

The following summaries will give the reader a good understanding of where the deposition behavior in the Barksdale School Portraits case falls on the spectrum of other cases with similar, though not identical, facts.

Bar Counsel v. Rosin, Massachusetts Board of Bar Overseers, No. 2023-12 (Nov. 6, 2023):

• Summary of findings: Attorney, who was seated with his client during client’s remote deposition, both of whom were wearing masks, repeatedly coached and provided the client answers to deposition questions.
• Rules violations: Massachusetts Rule of Professional Conduct 3.4(c) (knowingly disobey an obligation under the rules of a tribunal); Rule 8.4(d) (lawyer shall not engaged in conduct prejudicial to the administration of justice); Rule 8.4(h) (forbidding “other conduct that adversely reflects on his or her fitness to practice law”).
• Aggravating factors: None found.
• Mitigating factors: Immediate and candid acknowledgement of misconduct; expression of remorse; motivation to protect vulnerable witness; “abusive and uncivil nature” of opposing counsel’s questioning of witness.
• Sanction: Public reprimand.

Matter of Claridge, Arizona Supreme Court, No. PDJ-2021-9088 (Jan. 21, 2022)

• Summary of findings: During virtual divorce trial, attorney repeatedly used “chat” messaging to advise client how to answer questions during cross-examination.
• Rules violations: Arizona Rule of Professional Conduct 3.4(a)(fairness to an opposing party); Rule 8.4(c)(deceit); 8.4(d)(conduct prejudicial to the administration of justice).
• Aggravating factors: Dishonest or selfish motive (deceit).
• Mitigating factors: Absence of a prior disciplinary record; cooperative attitude toward proceedings.
• Sanction: Sixty-day suspension of license to practice law.

Florida Bar v. James, Florida Supreme Court, 329 So. 3d 109 (Fla. 2021)

• Summary of findings: During pre-COVID telephone deposition, conducted in 2018, attorney sent numerous text messages to witness advising her how to answer deposition questions; attorney, when confronted with evidence of text messaging during the deposition by opposing counsel, denied sending text messages to witness.
• Rules violations: Florida Bar Rule 3-4.3 (“any act that is unlawful or contrary to honesty and justice”); Florida Bar Rule 4-3.4(a) (“lawyer must not … unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document …”); Florida Bar Rule 4-8.4(d) (“lawyer shall not . . . engage in conduct in connection with the practice of law that is prejudicial to the administration of justice . . .”).
• Aggravating factors: Dishonest or selfish motive; refusal to acknowledge the wrongful nature of the conduct; and substantial experience in the practice of law.
• Mitigating factors: absence of prior disciplinary record; cooperative attitude during disciplinary proceedings; good character or reputation.
• Sanction: Ninety-one day suspension of license to practice law.

Unlike the high courts in Arizona and Florida, the Massachusetts bar regulators did not find a deceitful motive in the attorney’s numerous acts of witness coaching. His insistence on wearing a mask (over objection) during the deposition and repeatedly muting his microphone also drew no disapproval.

Although it sanctioned the attorney’s unethical behavior in the Barksdale School Portraits case with just a public reprimand, the Massachusetts disciplinary board remarked that other attorneys in similar situations might not be so lucky.

“Among the factors are the respondent’s immediate and candid acknowledgement of his misconduct, his remorse, his motivation to protect a vulnerable client, and the abusive and uncivil nature of opposing counsel’s questions,” the board wrote. “We also recognize that the misconduct was not premeditated but arose in the moment as an emotional (albeit inappropriate) aspiration to protect his client. We emphasize these circumstances to alert the bar that future cases of deposition misconduct, and all forms of discovery abuse, may not be viewed as indulgently as this case.”

Preventing Witness Coaching

The deposition that led to case sanctions and professional discipline in this case took place in early 2021, a time when many attorneys were conducting remote depositions for the very first time. Today, with the collective experience of thousands of remote depositions under their belt, litigators are much more cognizant of the problems that might occur during a remote deposition — as well as which safeguards can be adopted to prevent them.

If followed, recent guidance from both the ABA and the Massachusetts Supreme Judicial Court might have prevented the witness coaching that took place in this case. For example, the Massachusetts high court’s proposed ground rules for remote depositions included the suggestion that microphones always be “on” for attorneys, witnesses, and the court reporter. Another suggestion from Massachusetts is to limit attendance at remote depositions only to those individuals who would be allowed to attend an in-person deposition.

Several points raised in the ABA’s guidance on witness coaching might also have, if followed, supplied a check on the witness coaching that occurred here. For example:

• Engage in skillful cross-examination designed to expose opportunities for witness coaching or other improper outside influence during remote deposition
• Seek a court order limiting attendance at the deposition (e.g., why was the witness’s husband present with the witness during the deposition?)
• Seek a court order to limit opportunities for witness coaching (e.g., forbid the  witness and her attorney from wearing a mask during the deposition)
• Include prophylactic protocols in remote deposition orders and pretrial discovery plans

The main takeaway from the legal community’s experience with remote depositions this far seems to be this: Plan ahead for likely trouble spots and build protections against them — either in a remote deposition protocol or court order.