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Can You Identify Sanctionable Deposition Behavior?


As an attorney, you have an obligation to zealously advocate for your client. That being said, your advocacy must also remain civil and meet the standards of professional conduct. In fact, some state Bar Associations (like those in Florida, California, and South Carolina) have even added civility pledges to their oath of admission. Attorneys who violate these professional standards of behavior can find their license suspended, their case dismissed, and their privilege to practice outside of their jurisdiction revoked.

So, how can you determine when bad behavior merits sanctions? In this article, we’ll take a closer look at examples of sanctionable deposition behavior and review some of the rules that govern professional civility among attorneys.

Let’s get started!

The Rising Frequency of Sanctions

Litigation always involves a degree of contention. Nevertheless, legal professionals have an obligation to maintain a professional and civil attitude while pursuing their client’s interests. This is a critical factor that influences public confidence in and perception of the justice system. Unfortunately, state bar regulators have “noted with concern, the evidence of declining civility within the legal profession.” This observation is supported by research that revealed: “a several hundred percent increase in the number of Rule 30(d)(2) sanctions opinions in the last ten years.”

Reviewing Rules of Civility

Courts can impose sanctions for deposition misconduct when the behavior is in breach of the rules of professional conduct. Some of the rules that create a duty of professional civility include:

Rule 1.2(d):

“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

Fed. R. Civ. P. 30(d)(2):

“The court may 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.”

Comment 1 to Rule 1.3:

“A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client…The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Final Thoughts

Thanks for reading! We hope this article has refreshed your memory of the rules of professional conduct. Understanding these rules will help you identify attorney behavior that rises to the level of sanctions. If you enjoyed this article, feel free to share it on social media!

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