Professionalism and Civility in Depositions

This is the second of two articles addressing issues that arise in the context of depositions. This article focuses on the ethical, professional issues, and civility issues that arise during the deposition itself. The first, available here, focused on ethical issues arising in preparing a witness for deposition. 

Most attorneys have experienced unprofessional conduct by opposing counsel in depositions. There has been such a decline in civility in the profession that younger attorneys may feel that deposition misconduct is the norm. But despite the prevalence of uncivil and unprofessional behavior, attorneys must not lose sight of the fact that depositions are formal proceedings governed by the same Rules of Professional Conduct, and the same principles of civility and professionalism that apply in any court setting. 

Unethical and unprofessional behavior in depositions can include a lack of cooperation in scheduling a deposition, witness coaching, making excessive objections or interruptions to obstruct the fact-finding process, insulting opposing counsel personally or denigrating the merits of their case, misleading or harassing a witness, improperly instructing a witness not to answer, and offering false testimony. While less common, abusive, violent behavior or discrimination against opposing counsel does occasionally occur and is clearly sanctionable. Ethical missteps in depositions can jeopardize the client’s position in the case, increasing the risk of a malpractice claim. Misconduct also erodes your credibility, damages professional relationships, and can follow you throughout your career. Each type of misconduct is discussed below.

Lack of Cooperation. Attorneys should cooperate in setting and scheduling depositions in the order they are noticed. It can be a misuse of the discovery process to fail to respond to a request for a deposition date, to cancel a deposition at the last minute, or to try to take a deposition before one that was noticed first. (Code of Civ. Proc., § 2023.010, subs. (d), subs. (f), and subs. (i).) Such behavior also runs afoul of the civility guidelines. Under the California State Bar’s Attorney Guidelines of Civility and Professionalism, the deposition that is noticed first should proceed first, absent unusual circumstances. (State Bar California Attorney Guidelines of Civility and Professionalism [“Civility Guidelines”], § 9(a)(1).) Professionalism requires being responsive to opposing counsel, cooperating in the setting of depositions, and not trying to use deposition scheduling to gain an unfair advantage. 

Witness Coaching. Coaching a witness is the process of using words, signals, gestures, or other means to suggest the answer to a question. Such conduct is sanctionable as discovery abuse under Code of Civ. Proc., section 2023.010 and section 2030.030. Witness coaching also violates the Civility Guidelines. (Civility Guidelines, § 9(a)(6) [“Once a question is asked, an attorney should not interrupt a deposition or make an objection for the purpose of coaching a deponent or suggesting answers.”].)

Coaching takes many forms. Attorneys have been sanctioned for writing notes in such a way that the witness can see them (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1561-62 [upholding sanctions imposed against counsel for coaching the witness during the deposition by writing notes to the witness]; sending text messages to the witness while the witness is testifying (Tavares v. Amtrak(2020) 2020 Cal. Super. LEXIS 38623 at *3-4); kicking the witness under the table; using a pre-set action such as throat clearing to signal the witness to answer a certain way; and employing lengthy speaking objections to tell the witness how to respond or not respond. 

Virtual depositions, which are increasingly common, come with a host of their own ethical issues. Witness coaching is of particular concern in the virtual context, where it is more difficult to tell if a witness is receiving feedback during the deposition. Attorneys taking virtual depositions should pay careful attention to the witness’ focus on the camera. Attorneys should be comfortable asking the witness to confirm there is nobody else in the room, requiring others in the room to be on camera, ensuring witnesses are not receiving messages on their phones, and confirming that witnesses are not looking at emails or other extraneous documents while on the record.

Even the appearance of impropriety can be enough to support sanctions; in Agnone v. Agnone (2025) 111 Cal.App.5th 758, the Court of Appeal upheld sanctions against an attorney who was physically present in the room with his client but refused to appear on camera. The attorney taking the deposition repeatedly asked the witness’s attorney to appear on camera, noting “every time that I ask a question, your client is looking upward to you for feedback.” Instead of agreeing to appear on camera, the attorney doubled down: 

“Your notice requires my computer to be equipped with a webcam. My computer is equipped with a webcam; so we complied with your notice. … Take your deposition. I don’t understand it. You know, a normal confident lawyer would go forward and take questions and answers today rather than continue to interrupt counsel and argue with me now for 25 minutes. … I am not going to turn on my webcam because I don’t need to have my webcam on.” 

(Id. at 762.) As Agnone v. Agnone demonstrates, it is important to remember that unprofessional statements made on the record in a deposition can become part of the permanent public record, available for anyone to read and cite.

Improper Objections and Speeches. The California Discovery Act is clear regarding the scope of proper and improper deposition objections. Speaking objections, in which the attorney goes beyond the legal basis for the objection, are not allowed. (CCP § 2025.460(b).) Another improper interjection is instructing witnesses not to answer for reasons other than privacy, privilege, or legal contentions. (See Civil Proc. Code, § 2025.480(a) [Instructing a witness not to answer questions without a proper legal basis is a misuse of the discovery process]; Rifkind v. Superior Court (1994) 22 Cal. App. 4th 1255, 1259 [legal contention questions can only be served as interrogatories].) An attorney should also refrain from self-serving speeches. (Civility Guidelines, § 9(a)(8).) Excessive commentary by counsel obstructs the truth-finding purpose of the deposition.

Abusive Conduct. Depositions are fact-finding exercises and may not be used to harass or intimidate a witness or to argue the case. In Ramos v. Emad Fathy Moawad (2021) 2021 Cal. Super. LEXIS 101880, the Los Angeles County Superior Court sanctioned an attorney for abusive behavior toward opposing counsel (repeatedly telling opposing counsel “be quiet”) and for using the deposition to harass and intimidate the witness through asking irrelevant personal questions. Another example out of Los Angeles involved constant bickering between counsel, including one attorney telling the other “I can do anything I want!” (Not so, the court admonished, excoriating both parties for their persistent unprofessionalism). (Rashti v. Lasalle (2021) 2021 Cal. Super. LEXIS 124031 at *12.)

Offering False Testimony. Ethical issues can also arise when clients testify inconsistently with what the lawyer knows or believes the truth to be. Rule 3.4 of the Rules of Professional Conduct provides that a lawyer may not counsel or assist a witness to testify falsely. Under Rule of Professional Conduct 3.3, a lawyer may not offer evidence the lawyer knows to be false. Rule 3.3 further provides that if a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence, and the lawyer learns it is false, the lawyer must take reasonable remedial measures, subject to the confidentiality provisions of Business and Professions Code section 6068(e) and Rule 1.6. 

In the context of a deposition, this issue can arise in two ways: first, the client may offer testimony during the deposition that the lawyer knows or suspects at that time is false. Second, the client may offer testimony during the deposition that the lawyer later discovers is false. Under the first scenario, the lawyer should meet with the client during a break and counsel the client regarding the client’s obligation to tell the truth and correct the testimony. Under the second scenario, the lawyer can counsel the client to correct the testimony by way of an errata or a subsequent discovery response. If the client refuses to correct the testimony, and the lawyer knows the testimony is false or reasonably believes it is false, the lawyer may not offer the testimony to the tribunal or use the testimony in the case.

Remedies. What can an attorney do if a deposition is marred by unethical or unprofessional conduct? If scheduling is the issue, motions to compel (or even ex parte applications) can assist in resolving scheduling issues. Most judges are unimpressed by scheduling gamesmanship, and the threat of seeking court assistance may be enough to secure cooperation from a reluctant opposing counsel. 

If conduct within the deposition is obstructive, harassing, or abusive, an attorney should first make a strong record of the conduct for use in a later motion. For example, if the attorney sees opposing counsel passing notes to the witness, the attorney should speak out loud what the attorney is observing so it is reflected in the transcript. Thereafter, the attorney can seek a protective order restraining counsel’s behavior in future depositions. An attorney can also seek the appointment of a judicial referee to oversee the continued deposition of the witness. The cost of a discovery referee should be borne by the obstructive attorney. (See Code Civ. Proc. §§ 2023.010(e), 2023.030(a); see also Andrews v. Superior Court (2000) 82 Cal.App.4th 779, 782.)