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On November 6, 2023, the Commonwealth of Massachusetts Board of Bar Overseers of the Supreme Judicial Court (“BBO”) issued a Massachusetts lawyer (the “Lawyer”) a public reprimand for coaching a witness at a deposition in what the BBO described as an “unprecedented” case.
At the remote deposition, both the Lawyer and his client were seated in the same conference room wearing masks, over opposing counsel’s objection. After each question, the Lawyer would whisper the answer to his client, who would then repeat it. Confronted by opposing counsel at the time, the Lawyer denied feeding his client the answers. Opposing counsel subsequently reviewed the deposition tape and noted about fifty instances of the Lawyer feeding his client answers, most of which were “yes” or “no” or “I don’t recall.”
Thereafter, opposing counsel filed a motion for sanctions in the United States District Court of the District of Massachusetts. At a hearing, the Lawyer acknowledged his misconduct, stating he became frustrated with opposing counsel’s examination and was too emotionally invested in the case. The federal judge presiding, Judge Talwani, granted the motion for sanctions in part and denied it in part. Judge Talwani disqualified the Lawyer from further participation in the litigation and referred the matter to the “presiding judge” of the district court, Judge Sorokin, to determine whether the matter necessitated further discipline.
Judge Sorokin concluded the Lawyer violated Rule 3.4(c) of the Massachusetts Rules of Professional Conduct for knowingly disobeying an obligation under the rules of a tribunal and Rule 30(d) of the Federal Rules of Civil Procedure, which permits sanctions against a lawyer who “impedes, delays, or frustrates the fair examination of [a] deponent.” Judge Sorokin also held the Lawyer violated Mass. R. Prof. C. 8.4(h), forbidding “other conduct that adversely reflects on his or her fitness to practice law.” Judge Sorokin ordered the Lawyer pay opposing counsel’s legal fees accrued preparing the motion for sanctions ($22,000), the Lawyer’s firm give up their fee (~$65,000), and the Lawyer bring on substitute counsel at his firm’s own expense.
In analyzing the proceedings at the Federal Court and sanctions imposed on lawyers in other jurisdictions for witness coaching, because no cases in Massachusetts previously existed based solely on a lawyer coaching a witness at deposition, the BBO adopted the case law in other states and determined the sanction for the Lawyer should be a public reprimand or a suspension of some length. The BBO further proffered that while the Lawyer denied his misconduct during the deposition, he did take ownership of his wrongdoing when confronted by the court. The BBO also found the Lawyer’s actions were not premeditated but “arose in the moment as an emotional . . . aspiration to protect his client.” Accordingly, the BBO decided to issue only a public reprimand in response to the Lawyer’s actions. The BBO warned that future cases of deposition misconduct “may not be viewed as indulgently as this case.”
Of course, attorneys know coaching a witness at deposition is never acceptable. Prior to the Covid-19 pandemic, spotting witness coaching at a deposition was more obvious and easily addressed. However, in an age of remote lawyering, attorneys need to remain cognizant of the ever-evolving landscape and ways in which issues of professional misconduct may arise. This case serves as a stark reminder that, although the playing field may change, the rules remain the same.