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Don’t yield to the text temptation

A recent disciplinary case in Florida has highlighted the temptations of technology, and reinforced the fact that ethical duties apply regardless of format and hearing venue.

In Florida Bar v Derek Vashon James1 the court considered a situation in which Mr James had been texting a witness for his client, while she was being deposed – that is, giving out-of-court testimony, a transcript of which could be used in the case at a later stage. The process was being conducted remotely, with Mr James, his opponent and the witness all in different locations and attending via telephone conference.

Mr James’ opponent, Ms Villaverde, noted she could hear typing sounds and raised the issue; Mr James advised he was texting his daughter. He was in fact texting the witness, with the messages clearly being coaching, such as “you don’t” and “you remember the deposition but not discussing checks”.

Ms Villaverde asked Mr James to put down the phone and stop texting. He agreed, but in fact continued to text. Embarrassingly for him, he inadvertently sent texts intended for his witness directly to Ms Villaverde, including messages such as “just say 03/28”, “don’t give an absolute answer” and “it’s a trap”. Ms Villaverde ended the deposition when she noticed the texts.

When the texts were subsequently produced following a motion from Ms Villaverde, disciplinary proceedings were commenced. Mr James claimed that he was attempting to aid the witness, as Ms Villaverde was talking over her and interrupting; Mr James claimed that he felt the witness was being mistreated.

In the disciplinary proceeding, he was found guilty of unlawfully obstructing another party’s access to evidence, but not guilty of conduct prejudicial to the administration of justice. The Bar association appealed the not guilty finding (and the penalty, a 30-day suspension).

The Supreme Court of Florida found that James was guilty of conduct prejudicial to the administration of justice, based on his dishonest conduct, specifically:

  • coaching the witness to give incomplete answers
  • claiming his texts were to his daughter rather than the witness
  • advising he had ceased texting when he had not.

The court increased the suspension to 91 days and ordered that Mr James pay the costs of the Florida Bar Association in the sum of $2851.80.

Although Mr James’ conduct was obviously egregious, and of a kind in which  most practitioners are unlikely to engage, the case serves as a good reminder that remote appearances have the same rules as in-person appearances, and should be approached with the same ethical duties in mind.

Had Mr James simply left his phone in his pocket – which he no doubt would have done had this been a face-to-face proceeding – none of this would have eventuated.

In circumstances where he felt the witness was being mistreated, it can be assumed he would simply have objected. Having his phone on hand, and treating the telephone deposition as somehow less formal than an in-person proceeding, led ultimately to his downfall.

Queensland Law Society has produced Guidance Statement No.25 Professional Standards when Appearing in Court Remotely to assist practitioners on these issues, and QLS members can also consult with the QLS Ethics and Practice Centre.

Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre.

Footnote
1 SC 20-128, 18 November 2021.

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