For the second time this year, the American Bar Association is offering guidance on how litigators can successfully, and ethically, minimize the occurrence of witness coaching during remote depositions. The ABA’s advice in a nutshell: Litigators should take time to understand the risks of witness coaching and then proactively address those risks through cross-examination, remote deposition protocols, and efforts to raise professionalism expectations through published codes of conduct.

The ABA observed in ABA Formal Opinion 508 (The Ethics of Witness Coaching) that, while the technology used in remote depositions and other remote proceedings is new, the lawyer’s ethical obligations of competence, honesty, and respect for the integrity of the fact finding process are not.

“The Model Rules that constrain unethical witness coaching extend to all testimonial contexts, regardless of format,” the ABA advised. “It is prudent for lawyers and adjudicators to consider prophylactic measures designed for use in remote proceedings to prevent and detect incidences of unethical coaching conduct.”

Integrity Has Always Been the Rule

The ABA ethics opinion reminds litigators that a failure to prepare witnesses for depositions, regardless of format, has always implicated ethical duties of competence and diligence. Conduct that interferes with the integrity of the justice system and obstructs another party’s access to evidence has also long been considered ethically problematic, the ABA noted.

“It is prudent for lawyers and adjudicators to consider prophylactic measures designed for use in remote proceedings to prevent and detect incidences of unethical coaching conduct.”

When these concerns arise in the relatively recent professional context of remote depositions, the recommended solutions for litigators are, first, to “be aware of the coaching-related risks of remote technology” and, second, to “structure remote proceedings in ways that will deter its occurrence and enhance the ability to detect it,” according to the ABA opinion drafters.

The ABA suggested several steps that litigators, courts, and state bar organizations can take to minimize the occurrence of unethical – or, at least, unprofessional – witness coaching during remote depositions. Among them:

• Engage in skillful cross-examination designed to expose opportunities for witness coaching or other improper outside influence during remote deposition
• Seek court orders directing uninterrupted testimony
• File motions to terminate or limit a deposition or for sanctions
• Include prophylactic protocols in remote deposition orders and pretrial discovery plans
• Judicial adoption of administrative orders governing the conduct of remote depositions
• Develop and adopt best practices guides for remote proceedings
• Develop and adopt of professionalism codes addressing conduct during remote proceedings

The ABA expressed the hope that, if litigators established remote deposition ground rules in advance (via protocols, court orders, or state bar codes of conduct), then these measures would build greater transparency and provide “helpful guardrails” to steer litigators away from unethical conduct during remote depositions.

Earlier this year, the ABA House of Delegates approved  Resolution 505 Best Practices for Remote Depositions, a document that gave litigators advice on how to navigate the most common challenges – including witness coaching – that might arise during a remote deposition.

Technology Competence Applies to Remote Depositions

Although the American Bar Association has no direct authority to regulate the practice of law, its Model Rules of Professional Conduct have been adopted in some fashion by state bar regulators in nearly every state in the country. Formal ethics opinions from the ABA are influential and widely applicable because they suggest how particular ethics rules should be applied to commonly encountered professional challenges.

Comment 8 to ABA’s Model Rule of Professional Responsibility 1.1 (Competence) provides that in order “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Although the ABA has never said so explicitly, its frequent mention of a lawyer’s ethical duty of technology competence when discussing remote depositions strongly suggests that a lawyer’s failure to appreciate the critical role technology plays in modern law practice and failure to develop skill in remote proceedings are ethically perilous.

The ABA ethics opinion also highlighted several recent court opinions in which lawyer behavior during remote proceedings raised ethical concerns.

• In re Claridge, PDJ 2021-9088 (Ariz. Jan. 21, 2022) (lawyer violated Arizona ethics rules by using chat feature to instruct client during cross-examination in virtual proceeding)
• Barksdale School Portraits LLC v. Williams, 339 F.R.D. 341 (D. Mass. 2021) (lawyer engaged in impermissible coaching during remote deposition)
• Florida Bar v. James, 329 So.3d 108, 109-112 (Fla. 2021) (lawyer’s alleged witness coaching through text messages intended for deponent violated Florida ethics rules)
• Johnson v. Statewide Investigative Services Inc., No. 20-C-114 (N.D. Ill., March 4, 2021) (alleged coaching during remote deposition was not unethical but did demonstrate lack of professionalism; this opinion is notable for the judge’s unsympathetic response to a lawyer’s claim that alleged deposition misconduct occurred because he was not “technologically savvy”)

We’re heartened to see the ABA’s emphasis on technology education and thorough preparation for remote depositions. These are topics we’ve written about extensively during the past few years, whether it’s navigating common remote deposition trouble spots, defending remote deposition witnesses, advance planning for remote depositions, and sharing remote deposition success stories from litigation experts. We’ve also published an eBook outlining the basic information every remote deposition protocol should contain. Armchair philosophers will forever debate whether fortune really does favor the bold, as the saying goes, but it’s incontestable that fortune always favors the well-prepared.