What are a California lawyer's ethical limits on objecting during a client's deposition and on consulting privately with the client during the deposition or its breaks?

Plain-English summary

The committee considers four deposition practices: (1) an objection phrased to suggest the answer; (2) an objection that the question is vague before the client expresses confusion; (3) interrupting a pending question to consult privately with the client; and (4) consultation with the client during breaks or recesses.

The committee anchors the analysis in the duty of competence (former Rule 3-110), the duty to use only truth-consistent means (Bus. & Prof. Code section 6068(d); former Rules 5-200(A)-(B)), and the bar on suppressing evidence (former Rule 5-220). Acts of moral turpitude and willful disobedience of court orders trigger discipline under sections 6103 and 6106. Offering false evidence or suborning perjury are violations (In re Jones (Cal. 1971); Witkin Cal. Procedure, Attorneys, section 535).

The committee distinguishes legitimate from improper objections. Objections shaped to conceal, distort, or misrepresent facts required to be disclosed are prohibited under section 6068(d) and Rule 5-220. A vagueness objection asserted because the lawyer does not understand the question (and may not be able to advise the client) is proper even if the client has not expressed confusion; the duty of competence supports it.

On consultation, the committee rejects a blanket no-consultation rule. In some circumstances, the committee identifies, the lawyer has a duty to interrupt to consult: where the client is testifying intentionally falsely (People v. Johnson (1998)); where a question calls for privileged information; or where the client appears confused or unable to answer accurately. Consultation is not unethical solely because it occurs during the deposition rather than before it; the constraint is the consultation's purpose and content. The committee does not adopt the "cynical view" that every consultation invites perjury, and notes that pre-deposition consultation is widely accepted on the same logic.

The committee discusses Hall v. Clifton (E.D. Pa. 1993), in which the court issued a blanket order barring private consultations during breaks and authorizing inquiry into any consultation that did occur. The committee identifies that as outside California's controlling authorities. Federal local rules in Colorado, Indiana, New York, North Carolina, Oregon, and Wyoming impose no-consultation rules; the committee notes constitutional concerns under Geders v. United States (1976) and Potashnik v. Port City Construction (5th Cir. 1980) but declines to opine on substantive procedural law.

The committee surveys Los Angeles County Superior Court Local Rule 7.12(e), which provides "should/should not" guidelines for defending counsel (limit objections, don't coach while a question is pending, don't direct refusals to answer except for privilege, irrelevance, or harassment). The committee, following Allen Jacobs v. State Bar (Cal. 1977) and California Correctional Peace Officers Assn. v. State Personnel Bd. (Cal. 1995), reads the "should" language as directory rather than mandatory. The committee distinguishes a directory rule from a specific court order in a case: a specific order limiting consultation must be obeyed under Bus. & Prof. Code section 6103 (Barnum v. State Bar (Cal. 1990); Trans-Action v. Firmaterr (1997)).

In practice

The opinion holds that, under California's pre-2018 rules as they stood in 1999, a lawyer defending a deposition has an ethical duty to assert appropriate objections (without coaching) and may consult with the client during the deposition or breaks when necessary to fulfill competence duties. The committee identifies three specific scenarios where interruption to consult may be required: false or misleading testimony, calls for privileged information, and client confusion. The committee distinguishes directory local-rule guidelines from specific court orders; the latter must be obeyed.

California's professional-conduct rules were revised effective November 1, 2018; former Rules 3-110, 5-200, and 5-220 correspond substantially to current Rules 1.1, 3.3, and 3.4. CCP section 2025.420 was added and amended after this opinion to address deposition objections and consultations. The committee's analysis predates those statutory and rule revisions.

Common questions

Q: Can a California lawyer interrupt a deposition to consult with the client while a question is pending?

A: Per the opinion, yes, in certain circumstances. The committee identifies false or misleading testimony, calls for privileged information, and client confusion as situations where consultation may be required. The constraint is whether the consultation's purpose and content cross into suborning perjury or obstruction.

Q: Can a lawyer consult privately with the client during breaks or recesses?

A: Per the opinion, yes, absent a specific court order to the contrary. The committee rejects a blanket no-consultation rule; the test is the consultation's purpose and content, not its timing.

Q: Can a lawyer object that a question is vague before the client expresses confusion?

A: Per the opinion, yes. The duty of competence permits the lawyer to seek clarification when the lawyer does not understand the question; the lawyer cannot advise the client without understanding.

Q: Are coaching-style objections allowed?

A: Per the opinion, no. Objections asserted to conceal, distort, or misrepresent facts required to be disclosed violate Bus. & Prof. Code section 6068(d) and former Rule 5-220.

Q: Do local court rules govern this conduct?

A: Per the opinion, Los Angeles County Local Rule 7.12(e)'s "should/should not" guidelines are directory rather than mandatory. Failure to follow them, by itself, is not an ethical violation. A specific court order in a case limiting consultation is binding under Bus. & Prof. Code section 6103.

Q: What about federal courts that prohibit consultations during breaks?

A: Per the opinion, the local rules in Colorado, Indiana, New York, North Carolina, Oregon, and Wyoming impose no-consultation limits and may raise constitutional concerns under Geders v. United States. The committee does not opine on substantive procedure but directs counsel to comply with the applicable local rule.

Background and rules framework

The opinion interprets former California Rules of Professional Conduct 3-110(A) and (C), 5-200(A)-(B), and 5-220, and Bus. & Prof. Code sections 6067, 6068(a), 6068(d), 6068(o)(3), 6086.7(c), 6088, 6103, and 6106. It engages CCP section 2025(l)(1), Los Angeles Superior Court Local Rules 7.12(e) and 7.13, Penal Code sections 127, 132, 134, 135, and 182(5), and Witkin California Procedure (4th ed. 1996), Attorneys, sections 535, 540-541.

Citations and references

Rules of Professional Conduct:

• Former California Rule 3-110(A) and (C) (competence)
• Former California Rule 5-200(A)-(B) (truth in advocacy)
• Former California Rule 5-220 (suppression of evidence)

Statutes:

• Bus. & Prof. Code sections 6067, 6068(a), 6068(d), 6068(o)(3), 6086.7(c), 6088, 6103, 6106
• Code of Civil Procedure section 2025(l)(1)
• Penal Code sections 127, 132, 134, 135, 182(5)

Court Rules:

• Los Angeles County Superior Court Local Rules 7.12(e) and 7.13

Cases:

• Allen Jacobs v. The State Bar, 20 Cal.3d 191 (Cal. 1977), directory vs. mandatory statutory language
• Barnum v. State Bar, 52 Cal.3d 104 (Cal. 1990), section 6103 reaches specific orders
• Annex British Cars, Inc. v. Parker-Rhodes, 198 Cal.App.3d 788 (1988)
• Beverly Union Co. v. Superior Court, 206 Cal.App.3d 40 (1988)
• California Correctional Peace Officers Assn. v. State Personnel Bd., 10 Cal.4th 1133 (Cal. 1995), directory language
• Cole v. Antelope Valley Union High School District, 47 Cal.App.4th 1505 (1996)
• Garcia v. McCutchen, 16 Cal.4th 469 (Cal. 1997)
• Geders v. United States, 425 U.S. 80 (1976), constitutional concerns with no-consultation rules
• Hall v. Clifton, 150 F.R.D. 525 (E.D. Pa. 1993), blanket no-consultation order
• In re Jones, 5 Cal.3d 390 (Cal. 1971), suborning perjury
• Laborers' Intern. Union N.A. v. El Dorado Landscape Co., 208 Cal.App.3d 993 (1989)
• Pacific Trends Lamp & Lighting Products v. J. White, Inc., 65 Cal.App.4th 1131 (1998)
• People v. Johnson, 62 Cal.App.4th 608 (1998), duty to address client perjury
• Potashnik v. Port City Const. Co., 609 F.2d 1101 (5th Cir. 1980)
• Spitze v. Zolin, 48 Cal.App.4th 1920 (1996), directory language
• Trans-Action Commer. Investors, LTD. v. Firmaterr, Inc., 60 Cal.App.4th 352 (1997)

Other:

• 1 Witkin California Procedure (4th ed. 1996), Attorneys, sections 535, 540-541
• David H. Taylor, Rambo as Potted Plant: Local Rulemaking's Preemptive Strike Against Witness-Coaching During Depositions, 40 Vill. L. Rev. 1057 (1995)

See also

• LACBA Opinion 502: Limited-Scope Representation of Pro Per Litigant
• LACBA Opinion 482: Representations Made to Opposing Counsel and the Court
• LACBA Opinion 525: Online Response to Former Client's Adverse Comments

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010613