Reciprocal Sanction For Deposition Misconduct

A public censure has been imposed as reciprocal discipline by the New York Appellate Division for the First Judicial Department

The material facts underlying this disciplinary matter are undisputed as respondent, represented by counsel, entered into a June 12, 2023 stipulation with the Massachusetts Bar Counsel admitting to deposition-related misconduct and consenting to a public reprimand.

Respondent represented a defendant in a civil action brought in the United States District Court for the District of Massachusetts. During his client’s 2021 deposition, which took place remotely with respondent and his client in a conference room, both wearing face masks, respondent repeatedly muttered answers to questions posed to his client by opposing counsel. Respondent’s client repeated the same or substantially the same answers. Several hours into the deposition, opposing counsel first overheard respondent provide an answer to the client, which the client repeated. Confronted by opposing counsel, respondent denied that he had given an answer to his client. When opposing counsel later reviewed the video of the deposition, he noticed several dozen instances of respondent surreptitiously providing his client with answers.

Opposing counsel moved for sanctions in the district court. At the sanctions hearing, respondent acknowledged coaching his client and blamed his conduct on frustration with opposing counsel’s examination, which he described as unnecessarily intrusive into sensitive topics with limited relevance to the case. In addition, he stated that he was concerned about his client’s well-being as she suffered from healthmchallenges and had been anxious about the deposition.

The district court judge who conducted an initial screening of the alleged misconduct for possible referral to the District of Massachusetts disciplinary process granted the sanctions motion in part and denied it in part. The court noted that respondent had acknowledged that his conduct was unacceptable and took responsibility for becoming too emotionally invested in the case. Nevertheless, the court noted that respondent had taken advantage of the remote proceeding and his interruptions did not constitute a momentary and isolated incident or a single lapse in judgment. Among other penalties, the court disqualified respondent from further participation in the litigation. The court denied the motion insofar as it sought more extreme sanctions, such as dismissal of respondent’s client’s case or imposing an adverse inference on the client’s testimony, noting that the wrongdoing was primarily that of respondent, not his client. The court referred the matter to the presiding judge of the district court for further proceedings.

Reciprocal discipline for Massachusetts sanction

Here a public censure is the appropriate reciprocal discipline as it is commensurate with the public reprimand imposed by Massachusetts and in general accord with this Court’s precedent involving arguably comparable misconduct.

(Mike Frisch)