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OBA Ethics Counsel

Ethics Opinion No. 104

Adopted February 28, 1936

The Board is in receipt of the following inquiry:

"Under out statute, as soon as service is obtained in a case, depositions of the witnesses of the adverse party may be taken by the other party. Does this justify a member of the bar, when taking the depositions of an adverse party, to propound to him questions which he knows are utterly incompetent, irrelevant and immaterial, and would be improper in any court, relying upon the fact that the officer before whom the depositions are being taken can not exclude the answers to the questions asked but can merely notice the objections made to them?"

In response:

In the trial of a cause only such facts as are material and relevant to the issues therein may be elicited. It is the duty, therefore, of a member of the bar to seek to elicit from witnesses only such facts as are material and relevant to the issues of the cause.

Rule 24 of the Rules of Professional Conduct provides, among other things:

"A lawyer should not offer evidence which he knows the court should reject in order to get the same before the jury by argument for its admissibility ...".

It is within the spirit of this rule that a member of the bar should not offer evidence which he knows the court should reject, in order to get it before the court itself.

Rule 24 concludes with the following statement:

"These and all kindred practices are unprofessional and unworthy of an officer of the law charged as is a lawyer, with aiding in the administration of justice."

Rule 31 provides that:

"He, (the lawyer) should strive at all times ... to improve not only the law but the administration of justice."

Under the law, under certain circumstances, a party may proceed to obtain material relevant testimony in a cause by deposition. In its more comprehensive term the procedure to be followed in the taking of a deposition is "process." Abuse of process arises when the process is used for a purpose not justified by the law.

The Board is of the opinion that the conduct of a member of the bar in eliciting from a witness, during the taking of a deposition, testimony which he knows to be incompetent, irrelevant and immaterial is unethical, constitutes an abuse of process, and unprofessional conduct. It is of the opinion that such conduct would subject such member of the bar to disciplinary proceedings.