Is it ethical for a lawyer taking an adverse party's deposition to ask questions he knows are incompetent, irrelevant, and immaterial, relying on the officer's inability to exclude the answers?

Plain-English summary

The inquiry noted that, under Oklahoma's statute, a party could depose the adverse party's witnesses once service was obtained, and that the officer taking the deposition could not exclude answers but could only note objections. The question was whether this justified a lawyer in propounding questions he knew were utterly incompetent, irrelevant, and immaterial.

The Board concluded it did not. It reasoned that only material and relevant facts may be elicited at trial, so a lawyer's duty is to seek only such facts from witnesses. Drawing on Rule 24, which provided that a lawyer should not offer evidence he knows the court should reject in order to get it before the jury by argument, and which condemned "these and all kindred practices" as unprofessional, the Board extended the principle to evidence a lawyer knows the court should reject offered to get it before the court itself. It also cited Rule 31, that a lawyer should strive to improve the administration of justice. Characterizing a deposition as a form of "process," the Board explained that abuse of process arises when process is used for a purpose the law does not justify, and concluded that eliciting testimony known to be incompetent, irrelevant, and immaterial is unethical, an abuse of process, and unprofessional conduct that would subject the lawyer to discipline.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rules cited here, Rules 24 and 31, belong to that superseded canon-era code and do not map onto the current Oklahoma rules on fairness to opposing parties and conduct in litigation. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer ask knowingly irrelevant questions in a deposition because the officer cannot exclude answers?

A: No. The opinion concluded that knowingly eliciting incompetent, irrelevant, and immaterial deposition testimony is an abuse of process and unprofessional conduct that could lead to discipline.

Q: Why did the Board treat this as abuse of process?

A: The opinion described a deposition as a form of "process" and explained that abuse of process arises when process is used for a purpose the law does not justify, which using a deposition to elicit knowingly improper testimony does.

Q: What rules did the Board rely on?

A: The opinion drew on Rule 24, condemning the offering of evidence a lawyer knows the court should reject and "all kindred practices," and Rule 31, that a lawyer should strive to improve the administration of justice.

Background and rules framework

The opinion applied Rule 24 of the then-current Oklahoma Rules of Professional Conduct, which barred offering evidence a lawyer knows the court should reject in order to get it before the jury, and Rule 31, directing lawyers to improve the law and the administration of justice. Both were drawn from the ABA Canons of Professional Ethics. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 24 (1929 Oklahoma Rules of Professional Conduct): a lawyer should not offer evidence he knows the court should reject in order to get it before the jury by argument; "these and all kindred practices are unprofessional."
• Rule 31 (1929 Oklahoma Rules of Professional Conduct): a lawyer should strive at all times to improve the law and the administration of justice.

See also

• FL Bar Ethics Op. 71-38: Misusing the subpoena power

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-104/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted February 28, 1936

The Board is in receipt of the following inquiry:

"Under out statute, as soon as service is obtained in a case, depositions of the witnesses of the adverse party may be taken by the other party. Does this justify a member of the bar, when taking the depositions of an adverse party, to propound to him questions which he knows are utterly incompetent, irrelevant and immaterial, and would be improper in any court, relying upon the fact that the officer before whom the depositions are being taken can not exclude the answers to the questions asked but can merely notice the objections made to them?"

In response:

In the trial of a cause only such facts as are material and relevant to the issues therein may be elicited. It is the duty, therefore, of a member of the bar to seek to elicit from witnesses only such facts as are material and relevant to the issues of the cause.

Rule 24 of the Rules of Professional Conduct provides, among other things:

"A lawyer should not offer evidence which he knows the court should reject in order to get the same before the jury by argument for its admissibility …".

It is within the spirit of this rule that a member of the bar should not offer evidence which he knows the court should reject, in order to get it before the court itself.

Rule 24 concludes with the following statement:

"These and all kindred practices are unprofessional and unworthy of an officer of the law charged as is a lawyer, with aiding in the administration of justice."

Rule 31 provides that:

"He, (the lawyer) should strive at all times … to improve not only the law but the administration of justice."

Under the law, under certain circumstances, a party may proceed to obtain material relevant testimony in a cause by deposition. In its more comprehensive term the procedure to be followed in the taking of a deposition is "process." Abuse of process arises when the process is used for a purpose not justified by the law.

The Board is of the opinion that the conduct of a member of the bar in eliciting from a witness, during the taking of a deposition, testimony which he knows to be incompetent, irrelevant and immaterial is unethical, constitutes an abuse of process, and unprofessional conduct. It is of the opinion that such conduct would subject such member of the bar to disciplinary proceedings.