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Technology is the key to ethically remote testimony recording | Esquire Deposition Solutions, LLC

We recently wrote about the ethical considerations that exist in all testimonial records. It turns out that the ethical rules that apply to testimony recording are primarily related to ensuring the integrity of the judicial process. This is the duty of an expert designed to prevent false testimony, over-guided testimony, or unreliable testimony in the light of the circumstances in which it was created.

These same considerations also exist for remote deposition. In this article, we will continue to practice explaining these ethical rules with a short list of “prohibited” commands. We hope that this will provide a framework for considering providing high quality and ethical advocacy during remote testimony recording.

  1. Don’t forget to master the technology used for remote deposition.

Almost all jurisdictions in the United States impose technical competence obligations on lawyers.

Comment 8 on ABA Model Rule 1.1 (Capacity) states: Educate and comply with all ongoing legal education requirements that lawyers follow. “

Comment 8 is by a lawyer

  • Keep up with innovation in their practice
  • Develop and maintain skills in using these technologies
  • Understand technology-related risks and benefits to clients

Regarding remote testimony practices, Comment 8 allows lawyers to develop expertise in using remote testimony techniques and preparing clients to provide effective remote testimony in their cases. It suggests that it is ethically obligatory.

  1. Do not tolerate coaching or other external influences.

Most lawyers are now familiar with the case of a Florida lawyer who was suspended for sending a text message to a witness during testimony recording. Lesser known is the case of an Arizona lawyer who was suspended for two months for coaching a client using the chat feature of the technology platform that the court used to perform virtual procedures. ..

The danger is the same in both cases. There is an external impact of technology support that compromises procedural integrity.

The attorney’s ethical obligation to prevent external influences derives from both Comment 8 (technical competence) and, arguably, the ethical obligation to enthusiastically represent the client. Comment 1 to ABA Model Rule 1.3 (Diligence) requires lawyers to “take the legal and ethical steps necessary to establish a client’s cause or effort.”

Because fraudulent coaching is a known danger in remote procedures, lawyers should take reasonable steps to minimize the threat of coaching to the interests of their clients. In the context of remote deposition, such steps may include:

  • Record warning to variant verbs that coaching and other external influences are prohibited
  • Seek a record statement from someone who identifies someone else in the room
  • Ask for a record promise from a deponent verb not to look at the screen of a cell phone or computer during deposit
  • By preparing the Remote Deposition Protocol (PDF), we will clearly explain the basic rules of deposition and the consequences of not complying with those rules.
  1. Do not “screen share” sensitive information.

ABA Model Rule 1.6 (Information Confidentiality) requires lawyers to “make reasonable efforts to prevent inadvertent or unauthorized disclosure or unauthorized access to information relating to the client’s representation.” increase.

If you can see the attorney’s screen displaying information related to the client at the moment of “screen sharing”, this ethical obligation may be violated during remote testimony taking. Or, if the surroundings displayed on the screen behind the lawyer reveal the client’s sensitive information. Also, the deliverables of privileged lawyers can be inadvertently shared as documents.

The solution to these problems is for lawyers to become experts in the use of technical platforms that support remote testimony recording. This alone can significantly reduce “accidents” during deposition.

Attorneys also need to close all on-screen software applications that may be “shared” during remote deposition. In many cases, it is possible to share only relevant documents, not the entire computer screen.

Another strategy is for lawyers to use virtual backgrounds instead of revealing the actual office environment behind them on the screen. However, be aware of the development of this strategy if testimony recording may be used during the trial. There is some evidence that the jury does not like virtual backgrounds.

  1. Don’t forget to train everyone on the litigation team.

Finally, the ethical obligation of supervision found in ABA Model Rule 5.1 (Responsibility of Partners or Supervisory Attorneys) applies to law firm leaders, all who are involved in the agent, to the above remote deposits. We impose an obligation to ensure compliance with our ethical obligations. Ethically speaking, the litigation team is as strong as its weakest connection.