The Law and Ethics of Civil Depositions

Abstract

Lawyers hold a unique position in American society, because they must simultaneously serve two demanding masters-their client and the court. Like double-agents, lawyers must keep both masters happy, while trying to convince each that their loyalties are undivided. This task is difficult, because the rules governing lawyers' conduct do not always clearly indicate whether duties to clients outweigh those owed to the court. Moreover, some rules seemingly conflict and leave lawyers in a Catch-22: One master cannot be served without betraying the other.

This tension between duties to client and court is nowhere more obvious than in the deposition setting. Civil discovery, including depositions, occurs largely outside of the judge's supervision. Thus, lawyers are expected to self-regulate their conduct. However, self­regulation can be difficult in a system that expects lawyers to represent their clients' interests zealously while serving as quasi-official judicial officers. Moreover, often neither the Model Rules of Professional Conduct, the Model Code of Professional Responsibility, nor the Federal Rules of Civil Procedure provide clear guidance for lawyers faced with the ethical dilemmas associated with taking a civil deposition.

For instance, Model Rule 3.4(d) provides that "[a lawyer shall not] in pretrial procedure…fail to make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party." On the other hand, Model Rule 1.3 imposes on an attorney the general duty to represent his or her client with "reasonable diligence" or zeal. Thus, the tension between a lawyer's duty as an officer of the court and as a client representative is replicated in the Model Rules.

Moreover, the Federal Rules of Civil Procedure frequently complicate, not ease, the problem. They do not provide ethical guidance, and they tend to refer only to "good faith" efforts to comply with discovery requests. Although some individual courts have adopted local rules that address deposition conduct, they, too, typically omit instructions about how to reconcile attorneys' conflicting duties. Also thrown into the equation are attorney civility or courtesy codes, which frequently do address discovery, including deposition conduct. These codes, however, are usually aspirational and contain no enforcement mechanisms.

What, then, are attorneys in depositions to do when faced with a situation that places their obligations to the court at odds with their obligations to their clients? What are their legal and ethical obligations? Where should they look when neither the discovery rules nor the ethical rules provides clear guidance?

This Article will focus on the tension between ethics and advocacy in the deposition setting. It will discuss applicable court rules, case law, ethical rules, and civility codes. The discussion takes place in the context of a hypothetical case concerning Ovar-X, a contraceptive similar to Norplant. Specifically, this Article will analyze different forms of discovery abuse. It will assess scenarios in which the deponent and her attorney hold several private conferences during the deposition; the deponent's attorney continuously objects and instructs the deponent not to answer questions; the questioning attorney asks potentially embarrassing questions that may or may not be relevant; and the attorneys engage in colloquy and hurl personal attacks at each other. When the rules are silent, this Article will propose solutions that might help attorneys and courts deal with these common forms of deposition abuse.

Keywords: deposition, abuse, ethical obligations, serving clients, duty to clients, duty to courts, Model Rule of Professional Conduct, Model Code of Professional Responsibility

JEL Classification: K19