Masked Misconduct

Coaching a witness in a zoom deposition drew a public reprimand of the Massachusetts Board of Bar Overseers

During his client’s deposition, which took place remotely, the respondent repeatedly coached his witness on answering questions. The respondent and his client were seated in the same conference room, both wearing masks over the objection of the lawyer who took the deposition from another location. During the fifth hour the deposition, opposing counsel overheard the respondent provide an answer to the client, which she repeated. Confronted by opposing counsel at the time, the respondent denied that he had fed an answer to his client. When opposing counsel subsequently reviewed the videotape of the deposition, he noticed about fifty instances when he could hear the respondent surreptitiously provide his client with answers. Most of the answers were “yes” or “no” or “I don’t recall.” The client repeated the answers whispered by the respondent.

Sanctions imposed by the federal district court

The respondent paid the legal fees of opposing counsel in connection with the sanctions motion, approximately $22,000. He and his firm gave up their fee, which approximated $65,000, and he spent additional uncompensated time bringing on substitute counsel.

The judge did not refer the case. Rather, Bar Counsel opened its investigation from media reports.

A case of first impression

This case is unprecedented. There is no prior disciplinary case in Massachusetts based solely on a lawyer coaching a witness during a deposition.

Sanction

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. 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.

ABA Journal covered the misconduct with a link to the federal court order. (Mike Friisch)