A Florida lawyer violated the ethics rules by texting his witness during a deposition, the Florida Supreme Court recently held. The court imposed an even stiffer penalty than recommended.
Just the facts, ma’am
In January 2020, the Florida Bar filed its Complaint against the lawyer for conduct during a telephone deposition in a worker’s compensation case. The Complaint alleged that the lawyer secretly texted his witness (a claims adjuster for the employer), telling her how to respond to questions. During the deposition, claimant’s counsel stated on record that she could hear typing sounds and asked the lawyer if he and the witness were texting. The lawyer denied this, stated he was just receiving a text from his daughter, and indicated he would put his phone away.
Despite the exchange, after questioning resumed, he accidentally sent text messages intended for his witness to claimant’s counsel. Consequently, claimant’s counsel filed a motion for production and in-camera inspection of all texts sent during the deposition. Upon the court’s order, he produced two pages of text messages—none were with his daughter.
Referee’s recommendations
The Bar asserted that the lawyer’s conduct violated the Sunshine State’s versions of Model Rules 3.4 (Fairness to Opposing Party) and 8.4(d) (conduct prejudicial to the administration of justice). The Referee’s Report reflects that the testimony of the lawyer’s witness was unsworn, because the court reporter refused to swear the witness in due to the deposition being held telephonically rather than by video. The lawyer testified that he reasoned since the testimony was unsworn and opposing counsel did not agree to the identity of the witness throughout most of the deposition, the proceedings would need to be re-done or that the witness would have to testify at trial. The lawyer testified that he incorrectly believed that communicating with the witness during the deposition was not improper, and that in addition, worker’s compensation matters are typically more relaxed than civil litigation when it comes to applying the rules of procedure.
The referee, however, found that the lawyer’s conduct (including his representation that he was just responding to a text message from his daughter) was “misleading and a matter contrary to honesty,” rejected the charge of conduct prejudicial to the administration of justice, and recommended a 30-day suspension.
Dishonesty is “clear from the record”
The Florida Bar sought review of the referee’s light sentence, and the rejection of the charge of engaging in conduct prejudicial to the administration of justice. The state supreme court found that the lawyer’s dishonesty was ”clear from the record,” and reasoned that the conduct was intended to defeat opposing counsel’s lawful attempts to obtain evidence, including making misrepresentations to hide the conduct. The court said the conduct in fact was prejudicial to the administration of justice, in addition to being unfair to the opposing party, and boosted the sanction to a 91-day suspension.
Bottom line
The lawyer here alleged to have mistakenly thought that the deposition was an informal proceeding, and that the normal rules did not apply, justifying his texts to his witness. He then misrepresented the facts when his conduct was noticed. We are all susceptible to having an incorrect understanding of the law from time to time, but there really is never a good time to relax your ethical standards or your good judgement. And while each jurisdiction will vary on its rules, no matter where you practice, nothing makes a bad situation worse than being dishonest about alleged misconduct.