Post Authored by Alexandra Verven
In light of the COVID-19 pandemic, parties have been encouraged to proceed with depositions through alternative methods, i.e. via telephone conference or the more popular videoconference. While this may be a feasible substitute in certain, non-complex cases, it may not always be in the best interest of your client to proceed this way. Before saying yes to the next Zoom deposition, counsel should consider their duties and ethical obligations under the Illinois Rules of Professional Conduct.
For instance, counsel should consider whether their client needs them to be physically present with them at a deposition. After all, depositions can be intimidating, especially for witnesses being deposed for the first time. Attorneys can look to and Rule 2.1 (Advisor) and Rule 1.3 (Diligence) and the comments to these rules in making this determination. As an advisor, Rule 2.1 entrusts counsel with the duty to “exercise independent professional judgment” and to also “render candid advice.” In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation. Id. at Comment 2. Thus, an attorney can, and arguably should, rely on social factors, i.e. the client’s nerves, testimonial ability, confidence, in deciding whether the client needs him or her to be physically present during the deposition, even if the reason is for mere support; this is up to the attorney to decide. Additionally, a client is entitled to straightforward advice expressing the lawyer’s honest assessment, and a client may expressly or impliedly ask the lawyer for technical advice; i.e. to proceed with a telephone or videoconference deposition. Id. at Comments 1, 3. Rule 1.3 is also instructive and reminds counsel that they have a duty to act with “reasonable diligence and promptness in representing a client.” The comments further advise that a lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. Under the current circumstances, diligent efforts can mean pushing your client’s deposition to a date post-pandemic when counsel can be in the same room as the deponent if that is what is best for your client and his or her cause.
Even if counsel is encouraged to “make reasonable efforts to expedite litigation,” as set forth in Rule 3.2 (Expediting Litigation), counsel needs to remember that these efforts need to be “consistent with the interests of the client.” Id. After all, the client is at the heart of the Illinois Rules of Professional Conduct. Obviously, a failure to expedite litigation is not reasonable if it is done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress. Id. at Comment 1. Thus, no party should be using the current pandemic to their own advantage; however, it is reasonable to postpone oral discovery, especially if it involves complex cases with relatively inexperienced deponents, who would benefit from the presence of counsel at a deposition. In short, during this uncertain time, counsel needs to focus on their client’s best interests when considering proceeding with depositions.
About the Author:
Alexandra Verven is an associate attorney with the law firm of Barker, Castro, Kuban & Steinback LLC. Alexandra has concentrated her practice in the area of medical negligence serving in the defense of hospitals, physicians, and medical staff members. Her medical malpractice defense work involves pre-litigation investigation and counseling, as well as guidance and recommendations to her clients in various risk management strategies. She also handles a wide variety of civil defense litigation where she represents not-for-profit organizations and health care facilities in cases involving premises liability and personal injury. Prior to joining Barker, Castro, Kuban & Steinback LLC, Alexandra worked as a law clerk at one of Chicago’s prevalent plaintiff litigation firms, where she gained invaluable experience she uses to defend her current clients.