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.

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