It is generally a serious violation of our rules for counsel to pass private notes to a witness in an investigational hearing or deposition, or otherwise coach or consult with a witness, while a question is pending. 16 CFR 2.9(b)(1). Happily, violations of this rule are very rare. But, with the recent shift to remote depositions and hearings, we want to remind the bar that neither this rule nor our vigilance in enforcing it have been relaxed. Remote investigational hearings and depositions are generally subject to the same rules as their pre-COVID, in-person equivalents. As a result, note-passing (via paper or electronically)—like other forms of coaching or consultation while a question is pending—is prohibited, except as otherwise permitted by our rules. Specifically, 16 CFR 2.9(b)(1) permits consultation “with respect to issues involving protected status,” but nothing more.
We are grateful for the integrity of counsel and witnesses who appear before us, but we are attuned to the risk that the circumstances of remote proceedings may invite violations of our rules. As always, we will take appropriate measures to ensure compliance, and to detect and respond to violations. Pursuant to Commission Rule 4.1(e), those measures may include public reprimand, suspension, or disbarment from practice before the Commission. In addition, communications between counsel and a witness while a question is pending are likely not privileged, and staff may demand production of any such communications. Counsel have an ethical obligation to preserve such communications until the matter is resolved, and failure to do so may constitute a further violation of the FTC Rules of Practice and counsel’s obligations under applicable rules of professional conduct.
We appreciate the cooperation, professionalism, and good humor of counsel and witnesses during these trying times. Stay safe (and don’t pass notes in depositions).