Question
I have experienced incidents of rude behavior at depositions. Are these violations of the ethical duties of a lawyer?
Answer
It is difficult to give a specific answer to this question because it depends on the behavior of the lawyer and the specific conduct occurring during the deposition. Nothing in the Rules of Professional Conduct says that a lawyer must be a kind and gentle person even in a litigation situation. There are rules, however, that address lawyer conduct and require that attorneys avoid any conduct that would be considered harassing or discriminatory or that is designed solely to interfere with an individual’s opportunity to participate in the legal system.
For example, SCR 20:3.4 – Fairness to Opposing Party and Counsel provides the following:
A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;…
Also, SCR 20:3.1 –Meritorious Claims and Contentions provides as follows:
(a) In representing a client, a lawyer shall not: …
(3) file suit, assert a position, conduct a defense, delay a trial or take other action on behalf of the client when the lawyer knows or when it is obvious that such an action would serve merely to harass or maliciously injure another.
Further, SCR 20:8.4(i) provides the following:
It is professional misconduct for a lawyer to: … (i) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer’s professional activities. Legitimate advocacy respecting the forgoing factors does not violate par.(i).
Further, a lawyer violates SCR 20:8.4 (regarding misconduct) if the lawyer engages in conduct that violates the attorney’s oath. The attorney’s oath provides the following:
SCR 40.15 Attorney’s Oath.…
Need Ethics Advice?
As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.
Ethics Hotline. To informally discuss an ethics question, contact the State Bar ethics counsel, Timothy Pierce or assistant ethics counsel, Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.
I will maintain the respect due to courts of justice and judicial officers; … I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged.
A recent decision from a New York Appeals Court provides an example of how rude behavior might be treated in the criminal law system. A judge dismissed the lawsuit, a criminal proceeding, against a lawyer who allegedly committed assault by “wagging a finger and yelling during a deposition.” The Appellate Division First Department ruled that the alleged conduct did not amount to assault and also dismissed a slander claim for alleged defamatory statements made by the lawyer during the deposition.
It is incumbent on lawyers to maintain proper decorum during a deposition or any type of proceeding involving representation of a client. There are more and more complaints about lack of decorum and professionalism among lawyers, and it is sometimes attributed to “zealous advocacy.” Lawyers must remember that acting like a professional is a part of the legal profession.
