In “A Lawyer’s Guide to Cross-Cultural Depositions” we talked about the importance of establishing a rapport between a deposing attorney and a non-English-speaking deponent to help overcome the deponent’s mistrust and defensiveness. However, building respect when deposing a foreign-born witness is not even a consideration during hostile depositions where the witness speaks in a foreign language. In fact, some deposing attorneys have been known to act rudely towards a foreign language speaker during a deposition involving a foreign language deposition interpreter. But whether or not an attorney’s rude behavior towards a foreign language speaker during a deposition is considered unethical behavior is a question the courts continue to struggle with.
In one case, the court issued the following standard:
“A lawyer’s duty to represent his client zealously does not permit him to treat his adversary or parties in an offensive and demeaning manner or to engage in a course of conduct intended to coerce a settlement through improper threats and harassment. Although a lawyer must represent his client zealously, he must do so within the bounds of the law. An attorney is a professional and an officer of the court, not a hired gun or mercenary whose sole motivation is to win or an attack dog whose sole purpose is to destroy.” Revson v. Cinque & Cinque, 221 F.3d 7, 79 (2d Cir. 2000).
In a case involving an attorney making insulting comments and threats to their adversary during deposition, this standard was put to test. Revson, 70 F. Supp. 2d at 420.
Surprisingly, on appeal, the Court ruled in favor of the misbehaving attorney. According to the Court’s decision, the attorney’s conduct was not sanctionable because, according to 28 U.S.C. 927, the court must find clear evidence that:
1) The offending party’s claims were entirely meritless, and
2) The party acted for improper purposes. Revson, 221 F.3d at 78.
The Court argued that although the attorney’s behavior was “repugnant”, it was merely “reflective of a general decline in the decorum level of even polite public discourse.”
So what does this mean when an attorney behaves badly towards your foreign language-speaking client during deposition? Most likely such behavior will not be viewed as unethical for the simple fact that it is reflective of society’s general lack of ethics.