Recently, two disciplinary cases dealing with misconduct during remote depositions and court appearances have been getting a lot of buzz in the legal industry.

In the first matter, a Florida lawyer was suspended for secretly coaching a witness by text during a telephone deposition in which the lawyer, the witness and opposing counsel were all in separate locations.

In the second matter, an Arizona lawyer was suspended for coaching his client during a virtual trial via the chat function on the court's video application. Both attorneys were suspended from the practice of law for a period of two to three months.

These cases have been getting a lot of attention because they involve serious allegations of attorney misconduct. But they can also serve as a reminder regarding the need for ethical conduct during remote proceedings, and can highlight some tips for lawyers who suspect that improper coaching is occurring during a remote event.

Electronic Coaching Is Prohibited

As these recent disciplinary decisions make clear, electronic coaching of a witness during a deposition or hearing is not permitted. Just as a lawyer cannot pass a note to a client with an answer during a deposition, the lawyer cannot use text or chat features to do the same thing. This is a straightforward issue stemming from the need for attorneys to support the administration of justice and not interfere with a party's access to evidence.

Covering up misconduct can cause even more problems. In the Florida case, the lawyer arguably made things worse for himself by not answering questions about his communications directly. There, opposing counsel heard sounds over the phone that sounded like texting and asked the lawyer whether he was texting the witness.

The lawyer insisted that he was texting his daughter, but then mistakenly sent coaching texts (intended for the witness) to opposing counsel instead. Because the lawyer appeared to be dishonest about what was happening during the deposition, the court went beyond the recommended 30-day suspension and imposed a 90-one day suspension instead. As the old adage goes, sometimes the cover-up can be worse than (or just as bad as) the crime.

Notably, these two decisions arose out of pre-COVID-19 pandemic events. Now that online depositions and hearings are more prevalent, there may be even more circumstances in which this type of conduct could occur.

Risks of Waiving Privilege

A lawyer who communicates with a client during a deposition or hearing by remote means should be aware of the risks of waiving attorney-client privilege in such circumstances.

Even if the communication is otherwise proper under the ethical rules (e.g., when the lawyer and client are conversing via a chat feature during a Zoom appearance while another witness is testifying), it may not truly be a confidential and protected space. Indeed, some courts and clerks monitor the chat functions of online video platforms, which could result in confidential communications becoming known.

And if lawyers are improperly communicating with clients during a remote appearance, the court overseeing the event may order that communications be produced as evidence of the misconduct, regardless of any privilege. For instance, in the Florida matter, the court ordered the sanctioned lawyer to produce his text messages and other communications for review.

Create a Record

So what do you do if you find yourself in a position where you suspect another lawyer or party is sending or receiving improper communications? First and foremost, it is imperative to create a record.

For depositions, it can be helpful to include in the "ground rules" a reminder that the witness is not permitted to communicate in any form with a lawyer or any other person while a question is pending or any time the deposition is on the record. The questioning lawyer can also ask the witness about their access to electronic devices and instant messaging applications during the deposition and ask for confirmation on the record that all separate devices are turned off.

In the Florida matter above, the questioning lawyer grew suspicious after she heard what sounded like text messages during the telephonic deposition. Similarly, if a lawyer suspects misconduct during an event - based on sounds, the witness' conduct, or something else - it is important to ask questions about the issue on the record. Then if the suspicion is confirmed (or the witness or opposing counsel resist disclosing information), the questioning lawyer has a record that can be brought to a court.

When making a record, it is helpful to ask specific questions of the witness that the court will be able to review (such as whether the witness is communicating with someone or what are the alert sounds being heard). The questioning lawyer could also consider noting observations on the record if the witness appears to be receiving direction from off-camera or if the witness changes their answers midway through a response.

For events that are occurring in front of a judge on a court-provided platform, the questioning lawyer can similarly inquire or even ask the judge to inquire. It may be appropriate to ask the judge to instruct the clerk to review the chat history on any instant messaging application on the video platform.

If there has been witness tampering, it may be appropriate to file a motion for sanctions. If there is suspected misconduct, it may be appropriate to file a motion to compel any improper communications.

Engaging in electronic coaching is not only troublesome from an ethical perspective, but it can also harm a client's likelihood of success in a matter. Lawyers can learn from these examples about how to maintain an ethical practice in remote appearances.

Shari L. Klevens is a partner at Dentons and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons' global insurance sector team and is co-author of "California Legal Malpractice Law" (2014). 

Alanna Clair is a partner at the firm and focuses on professional liability defense. 

Klevens and Clair are co-authors of "The Lawyer's Handbook: Ethics Compliance and Claim Avoidance."