Court Suspends Lawyer for Texting Client Instructions during Remote Deposition
Anyone who has seen the movie The Departed probably remembers the scene where Matt Damon’s character is secretly sending an urgent text, from his pocket, without even looking. Doable enough on an old Nokia, sure (remember? 9-9-9 + 3-3 + 7-7-7-7 = Y-E-S), but imagine trying that with a smartphone! Sounds a lot more challenging.
Digression aside, lawyers would do well to steer clear of such sneaky texting, as a Florida lawyer recently learned. During a remote deposition, the lawyer in question, representing an employer in a workers’ compensation case, was texting instructions in attempts to coach the witness. This is of course a no-no, as is subsequently lying about it.
Perhaps he thought it would be easy to pull off during a deposition by phone. After all, no one can see him, what could go wrong! Well, as it turns out, several things, aside from simply being inappropriate and unethical.
The lawyer was found guilty of violating, among others, Florida Bar Rule 4-3.4(a), which states that “A lawyer must not…unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding…”
On the call with him were an adjuster for the employer he was representing, and the injured worker’s attorney. While on the call, the lawyer was texting instructions to the adjuster on how to answer the opposing attorney’s questions. But, hearing typing over the phone, the opposing attorney asked whether the lawyer was coaching the witness. The lawyer denied this, saying he had only been texting his daughter. However, despite having agreed not to text anymore, the lawyer did text additional instructions – but instead of sending them to the adjuster, he accidentally sent them to (drumroll please…) the opposing attorney. Classic face-palm moment.
In other words, he put his foot in it. And ultimately the Florida Supreme Court agreed. It found him guilty of violating several rules, imposing a 91-day suspension for conduct “prejudicial to the administration of justice.”
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