ABA: Don’t coach remote witnesses
Technology for Lawyers
Published: October 27, 2023
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility (“the Committee”) has come out swinging against lawyers coaching witnesses during depositions in the recently published Formal Opinion 508 (August 5,2023).
As a sort of a footnote in the last paragraph, the Committee recognized that remote depositions may need their own special approach.
In the four-section, heavily-footnoted Opinion, the Committee covers familiar ground before launching into a discussion on remote depos. Opening comments reference several Rules, including 1.2, 3.3, 3.4, 4.4, and 8.4.
Section 1 goes over what client prep is ethical. It states that, while discussing a case with your client is important, you can’t seek to improperly influence that client. (Side note: a client once fired me because I wouldn’t coach him to lie. Whatever).
Section 2 notes what crosses ethical lines before testimony, including inadvertent coaching that can induce false testimony.
Section 3 goes over what can cross ethical lines during the testimony itself.
Section 4 takes a journey through these potential ethical problems during remote testimony, since we are all leading a Zoom life now. Potential problems can arise when the lawyers, witnesses and adjudicating officers are in three or more different locations during a remote proceeding.
In a situation like this, it is relatively easy to signal a witness off camera by just setting up a laptop, phone or other device in front of the witness and telling the witness how to respond to questions. It would be “effortless” to do so, in reality.
And, in point of fact, lawyers do have a duty to maintain technical competence. This includes understanding how technology can be used to cheat, and engaging in activity that could limit the ability of the parties to do so.
The Opinion suggests creating “Systematic Precautions for Addressing Such Misconduct.” These include: skillful cross-examination; court orders directing uninterrupted testimony; motions to terminate or limit a deposition or for sanctions; inclusion of protocols in remote deposition orders, scheduling orders and proposed discovery plans; administrative orders governing the conduct of remote depositions; and inclusion of remote protocols in trial plans and pretrial orders.”
Food for thought.