ethically speaking
Coaching a witness in a remote deposition results in discipline by henry lee paul, esq.
I
n yet another example of facts that cannot be made up, a lawyer was caught texting a witness during a telephonic deposition. The texts were sent in an effort to coach the witness on how to answer deposition questions. The lawyer was discovered when he inadvertently sent some of the texts to opposing counsel instead of to the witness. In The Florida Bar v. James, SC20-128, the Supreme Court sent a strong message that it will not tolerate relaxed standards in circumstances involving remote practice. Even though the events in this case occurred pre-pandemic, they are especially applicable in the pandemic inspired reality of commonplace remote practice. The witness was an adjuster in a workers’ compensation case. The respondent was counsel for the employer/carrier. During the deposition, the opposing counsel heard “typing sounds” and inquired if the respondent and the witness were texting. Respondent admitted he was texting, but claimed it was only with his
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daughter. Opposing counsel requested that the respondent stop texting and the respondent agreed. However, the respondent continued to text with the witness during the deposition and then made the ultimate mistake of inadvertently sending texts intended to the witness to opposing counsel instead. Thereafter, the claimant’s counsel requested that all the texts between the witness and respondent be produced. The workers’ compensation judge found there was no privilege because they dealt with “testimonial matters and some of them constitute[d] witness coaching.” All the texts with the witness were produced. Respondent was unable to produce any texts with his daughter. Despite the coaching, the workers’ compensation judge did not find that the witness’s testimony was untruthful. The referee recommended the respondent be suspended for 30 days for his effort to coach the witness. The Supreme Court reversed the referee’s recommended sanction and instead imposed a 91-day rehabilitative suspension. The Court reasoned the conduct of respondent in sending LeeBar.org
the texts was dishonest. Respondent was found to have violated Rule 3-4.3 (Misconduct and Minor Misconduct), Rule 4-3.4(a) (Fairness to Opposing Party and Counsel – Obstruct Access to Evidence) and Rule 4-8.4(d) (Conduct Prejudicial to the Administration of Justice). The Court also found that respondent was not forthcoming about the texts and initially mischaracterized the typing sounds as being a result of texts with his daughter when no such texts were ever produced. Respondent cannot resume the practice of law unless he proves rehabilitation and is reinstated by the Supreme Court. This case should send a warning to members of the Bar. Remote practice does not equate with relaxed practice when it comes to compliance with The Rules Regulating The Florida Bar.
Henry Lee Paul, Esq. is a former Bar Counsel for the Florida Bar who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters. He also represents applicants in all matters before The Florida Board of Bar Examiners.
