Making a plan for ethical depositions

Depositions are routine in civil litigation, but they can expose counsel and clients to serious consequences. Courts have sanctioned or otherwise punished lawyers for improper conduct, including monetary penalties or a bar grievance.

The stakes run in both directions: misconduct can create risk for the individual lawyer and for the client. The prudent approach is to plan for the governing rules, prepare the witness without manufacturing testimony, and manage attorney-witness communications in a way that protects the integrity of the proceeding. Because the examination creates a formal record, an improvised response to a difficult moment can have consequences beyond the room.

Map the rules before the examination

A solid first step is to identify the law and any other guidance governing the deposition. Jurisdictions differ in their treatment of objections, motions to terminate or limit an examination, related motions practice and waiver. A review before the deposition helps prevent counsel from importing a familiar practice that the forum does not recognize.

Rules 30 and 32 of the Federal Rules of Civil Procedure address permissible objections, provide a basis for motions to terminate or limit a deposition, and address waiver. They are a starting point but not a substitute for checking the standing orders, local rules or deposition guidelines of the court where the case is pending.

These materials supply a framework but not always a bright-line answer. Counsel still must exercise judgment about tone, timing and how an objection or instruction is delivered.

Prepare the witness for truthful testimony

When defending a deposition, a key part of the process is making sure the witness is properly prepared. Counsel may explain the deposition process, review important documents and practice the mechanics of answering questions. A witness who understands the setting is better equipped to handle its pressures. Sufficient preparation can also help avoid situations where a lawyer feels tempted to violate the rules and intervene in the deposition to guide an otherwise-confused witness.

Sufficient preparation, however, does not mean that lawyer and client may manufacture testimony. Lawyers and witnesses are generally permitted to practice questions, and counsel may give constructive feedback about clarity or completeness of an answer. The line can be crossed when the lawyer directs a witness toward a response that contradicts the facts. The goal is accurate, confident testimony.

California Rule of Professional Conduct 3.3 illustrates the ethical stakes. It bars a lawyer from knowingly offering evidence the lawyer knows to be false, and Comment [1] states that the rule applies when the lawyer represents a client in an ancillary proceeding such as a deposition. The obligation likely applies to preparation, not merely the witness's sworn answers.

If counsel learns that a client has given false material testimony, Rule 3.3 calls for reasonable remedial measures. Comment [5] suggests the lawyer may remonstrate confidentially, advise the client of the duty of candor to the tribunal, and seek cooperation in withdrawing or correcting the false statement or evidence. If that fails, counsel may consider withdrawal, but Comment [5] advises that reasonable remedial measures do not include the disclosure of client confidential information, which the lawyer must continue to protect. Even where the lawyer seeks to withdraw because of a client's misconduct during a deposition, the lawyer still must comply with Rule 1.6 and Business and Professions Code section 6068.

A candid conversation before the deposition to explain the client's (and the attorney's) duties can help avoid that crisis.

Observe any applicable limits on private conferences

Whether counsel may speak privately with a deponent during the deposition is jurisdiction-specific. Some courts follow the bright-line approach of Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), barring conferences during the examination. Hall reasoned that private discussions tend to create, at minimum, the appearance that counsel is obstructing the truth. Counsel should not assume that a practice accepted in one forum will be accepted in another.

Elsewhere, the prevailing approach is narrower: Conferences are generally prohibited while a question is pending, subject to limited exceptions, such as to explore whether to assert a privilege. Nevada, for example, typically permits an attorney to confer with a witness about any subject during an unrequested recess, while limiting a requested break to whether to assert a privilege. Even where conferences are allowed, the subject discussed may be discoverable unless otherwise privileged.

Silence in the governing rules should not be treated as permission to influence testimony or impede access to evidence. The parties could also ask the court to enter guidelines or adopt a stipulation addressing attorney-client conferences if the rules are unclear. A case-specific order can establish an express boundary where practice is uncertain.

Sound deposition practice rests on deliberate preparation and disciplined judgment. That discipline serves the client without sacrificing the lawyer's obligations to the tribunal or opposing party. These habits reduce the risk that a client could be left to absorb the consequences of an avoidable mistake during a deposition.