Professor Jean M. Cary, of Campbell University’s Norman Adrian Wiggins School of Law, recants her previous position recommending that judges prohibit lawyers from consulting with their clients once a deposition begins in an article, “Rambo Depositions Revisited: Controlling Attorney-Client Consultations during Depositions,” published in “The Georgetown Journal of Legal Ethics (spring 2006).” During the civil case, Hall v. Clifton Precision, the late Federal Judge Robert S. Gawthrop III issued an order prohibiting all contact between lawyers and their witness-clients to curb the unethical coaching of witnesses during a deposition. Several states also adopted language in their Rules of Civil Procedure that prohibit to varying degrees conferences between lawyers and their clients once deposition has begun. But in this recent article, Cary changes an opinion expressed in a 1996 article in which she stated that Gawthrop’s order was a possible solution to control the “Rambo” defense attorney who persists in coaching a client. “I realized the danger such an order inflicts on the attorney-client relationship and on the ethical practice of law by leaving deponents undefended and vulnerable to unscrupulous questioning by the deposing attorney,” writes Cary. “These ‘no-consultation’ orders and rules have the potential of transforming the deposing attorney into a ‘Rambo,’ fighting against a deponent whose attorney cannot properly protect him. It may prevent a lawyer from following his or her ethical duty to counsel a client about correcting an unintentionally false or misleading statement.” In “The Georgetown Journal” article, Cary urges the U.S. Supreme Court to change the rule of Civil Procedure, proposing a two-sentence amendment that prohibits consultations between deponent and his or her counsel once a question has been posed by the deposing attorney, but permits lawyers to speak with their deponents at breaks and during overnight recesses. “Although excessive consultations between the lawyer defending the deposition and his deponent-client may certainly interfere with the search for truth and inhibit a full and fair disclosure of the facts,” writes Cary, “a blanket order or adoption of a rule prohibiting all attorney-client consultations after a deposition begins intrudes too far into the attorney-client relationship.” Professor Jean M. Cary graduated magna cum laude from Duke University with a Bachelor of Arts in history. She received a law degree from Georgetown University Law Center in 1975. She has been a member of the North Carolina Bar since 1975 and has defended cases at the U.S. Supreme Court, the U.S. Court of Appeals for the Fourth Circuit and the U.S. District Courts for the Western, Eastern and Middle Districts of North Carolina. She was a visiting associate professor of law at Duke University in 2000-2001 and is the presently the director of the National Institute for Trial Advocacy Southeast Deposition Program. Cary also served as director of the National Institute for Trial Advocacy Southeast Regional Program in 1999. Among other publications, her articles have appeared in the “Stetson Law Review,” “Education Law in North Carolina,” “Hofstra Law Review” and “School Law Bulletin.”Photo Copy: Professor Jean M. Cary of Campbell’s Norman Adrian Wiggins School of Law.
Cary questions “No-Consultation” order in published article