Before you conduct or defend your next remote deposition, be mindful of your ethical duties of Competence (Rule 1.1), Confidentiality (Rule 1.6), and Supervision (Rule 5.1), under the California Rules of Professional Conduct. Here are a few practical tips:
1. Know What Is Visible in Your Hollywood Square
Sometimes we see what we want to see and miss objects that may be inappropriate. Consider asking your assistant or another attorney in your firm to log into a remote meeting with you and carefully look at your “Hollywood Square” – how you appear on the screen – for items in your visible workspace that may give rise to ethical issues.
For example, to maintain confidentiality under Rule 1.6, client secrets placed in your work area should not be within the view of your camera. Draft motions or settlement agreements within your reach are potentially within the view of opposing counsel and the witness. White boards, case lists and calendars on the wall behind you are prime sources of improper disclosures.
Using a virtual background may mitigate the risk of sharing too much information. But understand that not all remote deposition platforms offer backgrounds. If you will be using a new platform, research its capabilities and be prepared. Have a space ready nearby where you can move on short notice so your background is appropriate.
2. Be Mindful of Your Audio
Always assume that your microphone is live. Even if your microphone is red and/or crossed out on the screen, assume that you can be heard. If you have a connected monitor and you close the laptop, your microphone may still be live.
Be cautious about background discussions. If opposing counsel is muted with their video turned off, they can still hear you if you are not muted. Ensure all listening devices such as Amazon Alexa, Google Home, and Siri are turned off because they will record your conversations if the wake word is heard and may also otherwise inadvertently record your conversations.
3. Practice Screen Sharing
If you use screen share to show exhibits, share only the document that you intend to share instead of your entire desktop. Close all other applications while you are using screen share, unless absolutely necessary to the deposition.
Check all exhibit filenames before sharing or uploading. When you use the screen share function, the name of the document may appear in the window of the PDF or image viewer. Use filenames that track the bates range for the document (e.g. PLAINTIFF 000100-000105) or the actual title of the document (e.g. Employment Agreement). This mitigates the risk of disclosing work-product information.
4. Practice with Clients
Prepare your clients to assess these issues by performing a test-run with them at least a week before the deposition. Ask clients to use the device they intend to use the day of the deposition (and to not use their mobile phone for the deposition appearance). Ask them to sit where they intend to sit for the deposition. Confirm that their plan works. Be sure they understand the technology and ensure that they do not share screens.
5. Train Each Other
Supervising lawyers must make reasonable efforts to ensure that subordinate lawyers conducting and defending remote depositions follow the ethical rules (Rule 5.1). But also consult with subordinate lawyers to identify additional tips, tricks, and problems. They may offer a perspective that you have not considered.
Joanna L. Storey is currently on an extended summer career pause. As a frequent speaker and author, she offers practical tips to help lawyers navigate effective communication strategies and technology competence. While at Hinshaw & Culbertson, Joanna focused her practice on professional liability and risk management for lawyers.