MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Caitlyn Elam
Lewis Thomason P.C.
LOCKED AND LOADED DEPOSITIONS In March 2016, a colleague of mine took a deposition with a somewhat usual twist. Shortly into the deposition, the witness confidently and intentionally made it known on the record that he was carrying a handgun. Although no overt threat was made, the point of the statement was clear – intimidation. The opposing attorney handled the situation wonderfully – he stopped the deposition, instructed the witness to remove the weapon from the building, and apologized for the incident. The deposition proceeded without further excitement. In January 2022, the Office of the Attorney General issued Opinion No. 22-01 to address a series of questions related to “Carrying Handguns in Buildings in Which Judicial Proceedings Occur.” The Opinion addresses Tenn. Code Ann. § 39-17-1306, which “generally prohibits individuals from carrying ‘weapons’ in buildings in which judicial proceedings are in progress.”1 Notably, the Opinion’s analysis frequently turns on whether a “judicial proceeding” is taking place. The term “judicial proceeding” is not defined within statute, so the Office of the Attorney General determined that a “judicial proceeding” occurs when a judge is present in the building “carrying out acts or taking steps that are part of any judicial proceeding.”2 Thus, if a judge is not present doing “judge” things, section 39-17-1306 does not prohibit weapons in the building. Given my colleague’s experience, I became curious – What obligations, if any, does an attorney have with regard to firearms on-site (whether in possession of attorneys, staff, or clients) during a deposition? The Tennessee Court of Appeals has previously written that “a deposition proceeding is no less a court proceeding than if the witness were testifying in open court.”3 Giving that statement its full weight, one struggles to see daylight between a “judicial proceeding” and a “court proceeding.” From the start, let’s be clear – I am taking no position on gun permits, carry rights, or the Second Amendment. I am simply asking the question and reporting my brief findings. Unsurprisingly, the Tennessee Rule of Professional Conduct and attendant Ethics Opinions were a dead end, and my search of other states (admittedly non-exhaustive) uncovered no quick answer, either. I did find at least one real-world scenario, though. The Supreme Court of Nevada suspended an attorney for six months after the attorney brandished a weapon during a deposition.4 As the story goes, the attorney engaged in disruptive behavior during a deposition – using vulgarities, calling the witness derogatory names, and making inappropriate statements, but the real excitement occurred when the attorney “ask[ed] the deponent if he was ‘ready for it’ while positioning his hand near his hip” and later “displayed a firearm he had holstered on his hip to the deponent and opposing counsel.”5 While there are undoubtedly gray areas on this subject, the attorney at issue was clearly on the wrong side of the line. The ultimate disciplinary finding was that the attorney violated Nevada Rule 8.4(d),
which is identical to Tennessee Rule 8.4(d), in purposefully intimidating the witness and thereby “engag[ing] in conduct that is prejudicial to the administration of justice.”6 On a side note, the attorney was representing himself in defending a defamation suit, so it appears the adage about selfrepresentation holds true. A law review article by Dru Stevenson, Professor of Law at South Texas College, is the closest thing to an authority on the matter that I could find.7 In his July 2020 paper, Professor Stevenson calls on the ABA to issue a formal ethics opinion, citing Rule 8.4(d) and declaring that “openly carrying firearms to adversarial meetings with other parties – such as depositions and settlement negotiations – is improper conduct for an attorney.”8 If the ABA took such a position, Professor Stevenson points out that attorneys could be in violation if they attempt to circumvent the Rule by having others, such as clients and staff, attend a deposition openly armed.9 Addressing the elephant in the room, Professor Stevenson notes that the Model Rules frequently touch on constitutional rights – namely sacrosanct free speech – and are still upheld.10 Your decision is yours, of course, but it seems the spirit of the Rules encourages firearm-free depositions. The Preamble of the Rules of Professional Conduct discusses a lawyer’s obligation “not to harass or intimidate others” as well as lawyer’s “duty to uphold legal process.” Rule 3.5(e) prohibits “conduct intended to disrupt a tribunal,” and Comment 6 expressly applies that Rule to depositions. Intimidation and disruption do not necessarily exist with a concealed weapon, but even if you are comfortable with your own personal restraint, do you trust your client to make the same levelheaded decisions in a heated moment? I personally would not want to explain to the judge that my client placed his hand near a firearm and asked if opposing counsel was “ready for it.” Until there is further ethical guidance, law firms can post a “no firearms” sign at the entrance pursuant to Tenn. Code Ann. § 39-17-1359, which allows private businesses to ban firearms inside establishments. As for me, I am including “please don’t bring a weapon” to the list of instructions to clients before a deposition, adding to the host of things that I never thought I would have to say out loud. 1 2 3
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Tenn. Att’y Gen. Op. 22-01 (Jan. 24, 2022), at 1. Id.; see also Tenn. Att’y Gen. Op. 19-07 (Jun. 18, 2019). Bramblett v. Nick Carter’s Aircraft Engines Inc., No. 294, 1991 WL 12284, at *7 n.4 (Tenn. Ct. App. Feb. 7, 1991). In the Matter of Discipline of Pengilly, 134 Nev. 956, 425 P.3d 381 (2018), reinstatement granted sub nom. In the Matter of Reinstatement of Pengilly, 451 P.3d 85 (Nev. 2019). Id. Id. Dru Stevenson, Ethical Issues with Lawyers Openly Carrying Firearms, 10 St. Mary’s J. Legal Mal. & Ethics 290, 296 (2020). Id. at 299. Id. See Rule 8.4(a). Stevenson, supra note 7, at 323-25.
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646. April 2022
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