The thing about doing bad things on purpose…

Is that you have to be perfect about it pretty much all of the time.

I’m not going to tell you that there are only two kinds of people in the world because I know that kind of thing is only used as the set up to really good jokes. But among the various kinds of people in the world are people who follow the rules because they believe in rules and want to do right and people who only follow the rules because they are afraid of getting caught.

As to that second category, if they really think they can get away with breaking a rule they just might try. Another kind of person is the kind that has no problem flouting rules and sometimes does not even think about the consequences of getting caught.

I have no idea which kind of person the lawyer we are writing about today is but, regardless, this tale provides supporting evidence of two things: (1) the convenience of Zoom depositions does probably also increase the risk that lawyers will improperly try to coach witnesses if they think they can get away with it; and (2) the point made in my title plus introductory sentence … if you are going to do bad things on purpose you pretty much have to be perfect about it or you likely will get caught.

You can read the full opinion suspending this lawyer for 90 days for improper coaching of his client during a deposition here. His approach was not a very high-tech one but the one that I think many lawyers believe is going on when they suspect the other side of coaching during these kinds of depositions — he was sending text messages to his client. The opinion lays out the blunt nature of the “coaching” that the attorney (James) was doing with the client (Gray) during the questioning by the opposing counsel (Villaverde):

The following messages were exchanged between Gray and
James during Villaverde’s questioning of Gray:

10:19 a.m. (James): You don’t
10:20 a.m. (James): As to settlement checks expiration
10:20 a.m. (James): You remember the deposition but not discussing checks
10:20 a.m. (James): yes
10:21 a.m. (James): Just review notes from 02/20/2018 forward
10:23 a.m. (James): Be careful just say
10:23 a.m. (James): You may not see today
10:25 a.m. (James): Take a break in 15 minutes?
10:25 a.m. (Gray): Up to you

The opinion also details how all this misconduct came to light. So, in a development that some might say actually does shed light on which type of person this lawyer is, after 10:25 a.m., opposing counsel called out what he heard as typing during the deposition and confronted the lawyer and the witness about whether they were texting each other during the deposition. They denied the allegation and the lawyer claimed he was only receiving a text from his daughter. All the same opposing counsel requested that the lawyer put his phone away and the lawyer agreed.

Then after a break, the lawyer sent the following text messages:

11:53 a.m. (James): Just say it anyway
11:53 a.m. (James): Just say 03/28
11:54 a.m. (James): In addition to the 03/28/2018 email
containing the signed release I show . . .
11:55 a.m. (James): Don’t give an absolute answer
11:55 a.m. (James): All I can see at this time but I cannot rule out existence
11:55 a.m. (James): It’s a trap
11:56 a.m. (James): Then say that is my best answer at this time.

The text messages above, however, were somehow sent to the opposing counsel instead of the lawyer’s client. Once the opposing counsel checked his phone and saw the messages, the jig was up, and the result was the 90-day suspension for violating RPC 3.4(a) because coaching a witness about how to testify during ongoing deposition testimony is easily understood as “unlawfully obstruct[ing] another party’s access to evidence….”

Now above I mentioned that this case likely will confirm suspicions lawyers have that Zoom depositions bring a greater risk of “cheating” by the lawyers involved. In fairness, that is something of a pretty big leap because, in case you were wondering, the deposition involved in this case happened back in 2018 and occurred over the telephone, not on Zoom during the pandemic.

Cute story? No. Chance for Cutestory reference? Yes.

♫ You’re a crook, Captain Hook / / Judge, won’t you throw the book at the pirate… ♫

For me, much as I’m certain it likely is for you, it is now “Day Something” (I’ve lost track) of surviving a pandemic. I hope that you are doing all that you need to do to both stay safe and take the appropriate steps to value your mental health and overall wellness.

What I had originally envisioned for a post for today was going to be something that sort of collected a variety of instances of attorneys being jerks and emphasizing how incongruous such behavior is with our current reality, but Michael Kennedy, the chief disciplinary counsel for Vermont, has already done that better than I might have, so here’s a link to his post on that subject.

Instead, I’m going to talk about a very specific, pre-pandemic incident that involves a maritime lawyer and, thus, gives me an excuse to talk about bingeworthy television, and specifically, my absolute favorite comedic television program of all time, Arrested Development.

We certainly live in the Golden Age of Television and will do so for at least a little bit longer until the current shut down in production schedules translates in the future to a lack of new content. But even before this true golden age of television, Arrested Development came on the scene. It hit me in all the right spots. So, if you are somehow desperately trying to figure out what to watch in your spare time and have access to Netflix and haven’t yet watched all of it – please feel free to do so.

Now, I segue from this into how I tie this even tenuously to legal ethics. This past week Law360 released a story, and the ABA Journal online followed with one of their own, about a maritime lawyer who got sanctioned in the form of a $1,000 fine for his bad behavior during a deposition as well as the opposing party’s attorney fees associated with certain aspects of the proceedings which will likely amount to much more than $1,000. Specifically, he interrupted the deposition questioning 145 times including 106 rather lengthy objections. This happened in federal court in Louisiana, one of the few places in the United States where maritime lawyers could thrive because of the robust seaport there.

The order is made available through both web portals but the ABA Journal requires no subscription so it’s likely easier for you to read that one here.

Because of the impact that Arrested Development had on me, I will forever associate being a maritime lawyer with Chareth Cutestory – a pseudonym used by Michael Bluth when he tried to flirt with Maggie Lizer, a lawyer played by Julia Louis-Dreyfuss.

It feels particularly on brand to reference that fictional plotline because (a) the real maritime lawyer involved was named Salley (but not Sally Sitwell) and (b) it feels like if Michael Bluth had actually been permitted to be in a deposition pretending to be a maritime lawyer then he could have ended up with a judge issuing a ruling that said something like this as well:

Of the 255-page transcript of the deposition, Salley appears on 170 pages. Salley objected 106 times, 52 of which were lengthy speaking objections. There are long, speaking objections that cover entire pages of the transcript. One speaking objection and Salley’s attendant argument, which followed a question asking the deponent when an affidavit was signed, covers in excess of six pages of the transcript….

That is simply a smattering of cites to Salley’s objections from the transcript. He also instructed the witness not to answer 16 times…. This Court’s review of the record reveals that none of these instructions was based on a valid reason under Rule 30.

And if you, like many, need a little visual help in getting the whole oeuvre of both this post and the Chareth Cutestory subplot, here you go.

(P.S. Stay safe.)

(P.P.S. And if you take any depositions in the next few weeks by Zoom, or Skype, or WebEx or telephone or otherwise, don’t do the kind of stuff (like speaking objections) that will get you sanctioned.)