The Law and Ethics of Civil Depositions
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, self-regulation 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.
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.