Unfortunately, practicing attorneys are not always on their best behavior. The Supreme Court of Ohio Commission on Professionalism recently released its first “Professionalism Dos & Don’ts” publication. The current edition focuses on depositions; offering advice to attorneys scheduling, conducting or attending a deposition.
While the list of Dos & Don’ts is mostly common sense advice, a good refresher never hurts. Be careful, though. Not all of the tips should be applied across the board. For example, the Commission advises attorneys to “go ‘off record’ and confer with opposing counsel, privately and outside the deposition room, if you are having problems.” While this may make sense in certain situations, make sure that you also preserve the record in the event that a motion to compel or a motion for sanctions becomes necessary. One option to consider if you confer off the record is to provide a summary of your conversation with opposing counsel on the record so that there is no misunderstanding as to what was (or was not) discussed “off record.”
Also, the Commission advises against speaking objections. This is generally good practice; but, make sure that you also comply with all applicable local rules and Ohio Rules of Civil Procedure. For example, Rule 32(D)(3)(b) provides that objections to certain “errors and irregularities” that may be cured during the oral examination of the deponent are waived “unless reasonable objection” is asserted.
Finally, consider sharing these Dos & Don’ts with your colleagues. Among the Commission’s programs is the Lawyer-to-Lawyer Mentoring program. If you are involved in this program, or if you serve as a mentor to young attorneys in your own firm, the Commission’s Dos & Don’ts provide a great opportunity to talk with young attorneys about the importance of professionalism, as well as the nuts and bolts of practicing law.
December 11, 2012