While warning that future deposition misconduct “may not be viewed as indulgently,” the Massachusetts Board of Bar Overseers has issued a public reprimand to a Boston managing partner who was overheard “feeding” answers to his client during a remote deposition.
Jeffrey M. Rosin, the managing partner of O’Hagan Meyer’s Boston office, was overheard by the plaintiff’s counsel feeding an answer to a witness during a remote deposition in Barksdale School Portraits LLC v. Williams in 2021. A closer review of a recording of the deposition revealed 50 other instances in which the off-camera Rosin had provided answers to the witness.
The presiding judge in the case, U.S. District Court Judge Indira Talwani, disqualified Rosin as part of a sanctions order, then referred him to Judge Leo T. Sorokin for attorney discipline. In January 2022, Sorokin ordered that Rosin be referred to Lawyers Concerned for Lawyers for “the limited purpose of receiving and completing counseling on better management of emotions and judgment in the face of adversity.”
In explaining the relatively light penalty, Sorokin noted that pursuant to Talwani’s sanctions order, in addition to Rosin having to withdraw from the case, his firm had forgiven a $65,000 fee owed by the client. Sorokin also credited Rosin for accepting responsibility for his conduct.
In its Nov. 6 decision, the BBO said that a disciplinary matter “based solely on a lawyer coaching a witness during a deposition” was unprecedented in Massachusetts, but noted that cases involving discovery violations “generally have resulted in public reprimands.”
The board acknowledged two cases identified by bar counsel in which lawyers in other states had been suspended for “witness coaching,” but found that both cases involved aggravating factors that distinguished them from the Rosin matter, including that the attorneys initially failed to take responsibility for their misconduct.
“In sum, case law instructs that the sanction for the respondent’s misconduct should be a public reprimand or a suspension of some length,” the BBO wrote.
In deciding to issue Rosin a public reprimand, the board noted several factors that weighed in the respondent’s favor.
“Among the factors are the respondent’s immediate and candid acknowledgement of his misconduct, his remorse, his motivation to protect a vulnerable client, and the abusive and uncivil nature of opposing counsel’s questions,” the board wrote. “We also recognize that the misconduct was not premeditated but arose in the moment as an emotional (albeit inappropriate) aspiration to protect his client.”
However, the BBO said it was emphasizing those factors to caution the bar that similar misconduct in the future might result in more severe penalties.
“We emphasize these circumstances to alert the bar that future cases of deposition misconduct, and all forms of discovery abuse, may not be viewed as indulgently as this case,” the board wrote.