Legal Memorandum: Admission of Deposition Testimony without Notice

Issue: Under Georgia law, what is the appropriate sanction for taking a party’s deposition without notice to that party’s counsel?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Admission of deposition testimony; Appropriate sanction
Jurisdiction: Georgia
Cited Cases: 303 S.E.2d 156; 504 S.E.2d 208; 123 S.E.2d 115; 210 S.E.2d 754
Cited Statutes: Ga. State Bar R. & Regs., EC 7-18; Ga. Code § 9-11-30 (2000)
Date: 05/01/2000

           Georgia law prevents the admission of deposition testimony taken in violation of the state’s rules of professional conduct and civil procedure.  The Georgia State Bar Rules and Regulations’ “anticontact” rule states:  “[A] lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person.”  Ga. State Bar R. & Regs., EC 7-18.  Other rules echo this prohibition, underlining its importance:


During the course of his representation of a client a lawyer shall not . . . communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so . . . .

Id., DR 7-104.  The state bar rules provide for discipline for violation of these standards, see id., Part IV, Discipline, and the courts have upheld sanctions even when the represented party contacted the opposing attorney of his or her own volition.  […]

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