The Ethics of "Speaking Objections"

Most lawyers who have some deposition experience have probably experienced a “speaking objection.”  That is when a lawyer involved in the deposition uses the opportunity to assert an objection to a question into an opportunity to make a speech.  Sometimes these speeches are just annoying; sometimes, they amount to an obstruction of the deposition process.

A recent trial court decision garnered some publicity when it found that a lawyer’s frequent speaking objections amounted to coaching the witness.[1]  The decision found the lawyer’s conduct sanctionable under Federal Rule of Civil Procedure 30(d)(2) which empowers the Federal District Court to “impose an appropriate sanction–including the reasonable expenses and attorney’s fees incurred by any party–on a person who impedes, delays, or frustrates the fair examination of the deponent.”  For good measure, the court also cited to 28 U.S.C. § 1927, which allows a monetary sanction against a lawyer for “unreasonable and vexatiously multiplies a proceeding” and also the court’s inherent power to control its proceedings, well-established in case law.[2]

The trial court found that the lawyer interposed 60 objections that implicitly instructed the witness on how to answer. “Objections such as “Calls for speculation,” “He is not qualified [to answer the question],” “To the best of your knowledge,” “Don’t guess,” and “You can answer if you understand” evidently signaled to [the witness] that he should claim ignorance or confusion, no matter how simple the question.” The court also found that a number of the lawyer’s objections were simply frivolous.

There is no discussion of the ethics rules in this decision, although several seem implicated by the facts, including some of the new California Rules of Professional Conduct effective November 1, 2018 (Rules).

New Rule 3.2 “Delay of Litigation” seems most on point.  It provides that in “representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.”  This is very close in spirit and substance to FRCP 30(d)(2) and section 1527.

New Rule 3.4. says that “a lawyer shall not: (a) unlawfully  obstruct  another  party’s  access  to  evidence,  including  a  witness,  or unlawfully alter, 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; (b) suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce; (c) falsify   evidence,   counsel   or   assist   a   witness   to   testify   falsely,   or   offer   an inducement to a witness that is prohibited by law.”  The new Rule gathers several former California Rules into one with the title “Fairness to Opposing Counsel and Parties.”  Frivolous objections and witness coaching certainly seem designed to frustrate the opposing party’s access to evidence in the form of the witness’s testimony and to suppress the witnesses unvarnished testimony.

Yet, there is no discussion of these ethical rules in the trial court decision discussed here imposing sanctions. The court did not refer the attorney to the State Bar, at least not in the decision.  Moreover, there are no reported California State Bar discipline cases involving the type of conduct found by the trial court here, so even if it were the subject of a State Bar complaint, it would seem unlikely to subject to discipline. 

Part of the answer is that although the State Bar of California enforces ethics rules, it is best understood as a government consumer protection agency, not as the Ethics Police.  Discovery misconduct is subject to the sanction of the trial courts, as occurred here, and the discipline prosecutors in the Office of Chief Trial Counsel don’t see a need to police conduct where both sides are represented by counsel and have the ability and incentive to invoke the court’s process to address that misconduct.  

Another part of the answer is that such gamesmanship has had a certain level of acceptance in our process as part of zealous advocacy.  Fairness to opposing parties and counsel has often taken a back seat to represent the client’s interests, even if that means pushing the limits and sometimes crossing them.

Will the adoption of these new Rules 3.2 and 3.4 help to induce greater respect for fairness to the opposition among the members of the bar? While these are discipline rules, there is no doubt that they should play in part in providing prophylactic guidance for California lawyers about ethical norms, even if they don’t result in disciplinary prosecution. Merely promulgating a Rule about fairness to opposing parties and counsel may open the eyes of some lawyers who had not fully considered these aspects of their professional responsibility.

The fact that they are discipline rules raises another interesting question. Will these new Rules  push the discipline prosecutors to enforce these new Rules by discipline in scenarios hitherto barely touched, like speaking objections? The State Bar, prodded by the Legislature, has become more focused on its public protection mission in the last few years, so the possibility must be recognized by lawyers that such tactics might result in discipline. The system, though, is driven by complaints and if no one complains about the conduct, if it continues to be regarded as just a species of sharp practice, discipline prosecution is unlikely.

David C. Carr is an attorney at law.

Read this article on the SDCBA blog