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Lawyer Suspended for Texting Witness in Deposition

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He sent a text to opposing counsel by mistake.

A lawyer in Florida who coached a witness by text during a phone deposition has been suspended for 91 days.

In addition to engaging in unethical communications with his client, the lawyer wasn’t candid when questioned by opposing counsel about what he was doing.

Ironically, he was caught when he inadvertently sent a text message to opposing counsel.

The Florida Supreme Court, in a November 18 opinion, found that the attorney violated two Florida Bar rules: 4-3.4(a) (A lawyer must not . . . unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document . . . .) and 4-8.4(d) (A lawyer shall not . . . engage in conduct in connection with the practice of law that is prejudicial to the administration of justice . . . .).

Read the Florida Supreme Court opinion here.

Read an ABA Journal article on the case here.

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Lawyer Suspended for Texting Witness

Here is an excerpt from the court opinion that describes what happened in the deposition.

“While the deposition was in progress and Villaverde [opposing counsel] was questioning Gray [witness], James [lawyer] sent text messages to Gray regarding her testimony. The texts included coaching and specific directions on how to respond to Villaverde’s questions.

The following messages were exchanged between Gray and James during Villaverde’s questioning of Gray: 10:19 a.m. (James): You don’t 10:20 a.m. (James): As to settlement checks expiration 10:20 a.m. (James): You remember the deposition but not discussing checks 10:20 a.m. (James): yes 10:21 a.m. (James): Just review notes from 02/20/2018 forward 10:23 a.m. (James): Be careful just say 10:23 a.m. (James): You may not see today 10:25 a.m. (James): Take a break in 15 minutes? 10:25 a.m. (Gray): Up to you.

Villaverde could hear typing sounds and asked Gray and James if they were engaging in texting during the deposition.

James denied texting Gray and stated he was only receiving a text from his daughter. Villaverde asked James to stop texting and put his phone away, and James agreed. James misrepresented to Villaverde that he had concluded the text messaging when in fact he had not.

After a break, and after Villaverde resumed questioning Gray, James inadvertently sent the following text messages intended for Gray to Villaverde: 11:53 a.m. (James): Just say it anyway 11:53 a.m. (James): Just say 03/28 11:54 a.m. (James): In addition to the 03/28/2018 email containing the signed release I show . . . 11:55 a.m. (James): Don’t give an absolute answer 11:55 a.m. (James): All I can see at this time but I cannot rule out existence 11:55 a.m. (James): It’s a trap 11:56 a.m. (James): Then say that is my best answer at this time.

Once Villaverde noticed the texts, she stopped the deposition. She later filed a motion for production and in-camera inspection of all the texts sent during the deposition. After the Judge of Compensation Claims granted the motion, James produced two pages of text messages but never produced any texts involving his daughter, despite being ordered to do so by the judge, and despite his assurances to Villaverde during the deposition that the typing sounds she heard involved a text received from his daughter.

The judge found that the text messages were sent during the deposition, not during a break in the questioning, and that they were not protected by attorney-client privilege, contrary to James’s claims.”

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