Arizona Attorney Suspended for Coaching Client During Virtual Cross-Examination
Florida Attorney Suspended for Texting Client During a Telephonic Deposition
By Jan L. Jacobowitz and Lauren Maier
Chatting, texting, and suspensions, Oh My! There seems to be no number of times that is too many to remind lawyers that the legal ethics rules continue to apply in a digital environment. If you cannot coach a client in real time, in person proceedings then you cannot do it electronically.
In the situations below, both lawyers expressed remorse, but too little too late to avoid suspensions. There are numerous, articles, ethics opinions, and amended competence rules that require lawyers to understand both the benefits and disadvantages of technology—It’s an ongoing obligation so whether it’s a video platform or a Tik Tok post, better get onboard!
The State Bar of Arizona recently suspended an Arizona attorney for 60 days coaching a client during cross-examination by way of chat feature on a video meeting platform. On January 21, 2022, the Arizona Bar and attorney Ryan Patrick Claridge jointly filed an Agreement for Discipline by Consent (the “Agreement”) which ordered Claridge to “complete the suspension and a two-year probationary period” which begins March 1, according to the ABA Journal.
According to the Agreement, in 2019 Mr. Claridge coached a client who he represented in a family court case, “which was conducted by video using GoToMeeting—[by using] the chat feature to advise his client how to answer questions during her cross-examination.” The hearing was conducted in September 2020 in the midst of the early adjustments to the pandemic.
The Agreement further states that the court became aware of the chat messages after the trial, after which it notified the State Bar to initiate the disciplinary action and issued a minute entry stating: “The Court reviewed the chat and discovered that [Respondent] appeared to be coaching his client on how to answer questions during her cross examination by [the client’s ex-husband]. The Court told counsel that this was inappropriate and should immediately cease.”
Mr. Claridge’s conduct violated Arizona Supreme Court Rule 42, specifically: ER 3.4(a)(fairness to an opposing party; ER 8.4(c)(deceit); and ER 8.4(d)(conduct prejudicial to the administration of justice). In support of the court’s sanction, the State Bar consulted the American Bar Association’s Standards for Imposing Lawyer Sanctions (Standards), and stated that in determining the appropriate sanction, “the Court considers the duty violated, the lawyer’s mental state, the actual or potential injury caused by the misconduct and the existence of aggravating and mitigating factors.”
The court applied Standard 6.2 Abuse of the Legal Process which “provides that Suspension is generally appropriate when a lawyer knows that he or she is violating a court order or rule and causes injury or potential injury to a client or a party or causes interference or potential interference with a legal proceeding.”
Reasoning that Mr. Claridge’s coaching to his client was intentional and directly in violation of the Rules of Professional Conduct, and further that there was “potential harm to the profession, the legal system and the public[,]” the court determined that Suspension was the appropriate sanction.
Mr. Claridge’s attorney, Donald Wilson Jr. of Broening Oberg Woods & Wilson, told LAW.com that Claridge “has taken responsibility and admitted in the agreement for discipline by consent that it was inappropriate.”
In addition to his suspension and probation, Mr. Claridge “must also pay the costs and expenses of the State Bar of Arizona in the amount of $1,200[,] according to the report. Though this is Mr. Claridge’s first disciplinary action in Arizona, he was suspended from practicing law in California, where he was also barred, due to failure to pay fees.
Interestingly, the instances of misuse of technology with a client are not only the results of the pandemic and wide-spread adjustment to video conferencing. In fact, another lawyer in Florida was suspended based upon his inappropriate texting/coaching of client during a workmen’s compensation telephonic deposition in 2018.
In his case, the opposing counsel heard clicking and asked the lawyer to stop texting and put his phone away. The lawyer continued texting and after a break inadvertently sent the texts to the opposing counsel instead of the client. Here’s the sample reported by the ABA Journal:
“11:53 a.m. (James): Just say it anyway
11:53 a.m. (James): Just say 03/28
11:54 a.m. (James): In addition to the 03/28/2018 email containing the signed release I show …
11:55 a.m. (James): Don’t give an absolute answer
11:55 a.m. (James): All I can see at this time but I cannot rule out existence
11:55 a.m. (James): It’s a trap
11:56 a.m. (James): Then say that is my best answer at this time.”
Making matters worse, when opposing counsel set a hearing before the judge, the lawyer attempted to persuade the judge that the texts were to the lawyer’s wife and daughter. The referee recommended a 30 day suspension, but the Florida Supreme Court suspended the lawyer for 91 days in an opinion released on November 18, 2021.
Bottom line: Understand technology and employ it within the parameters of the legal ethics rules and common sense. The old adage, the truth vets out, continues to replay in disciplinary proceedings throughout the country.
