An attorney has the right, if not ethical duty, to prepare his or her client for a deposition. As a commentator has observed: "American litigators regularly use witness preparation and virtually all would, upon reflection, consider it a fundamental duty of representation and a basic element of effective advocacy." Applegate, Witness Preparation, 68 Tex. L. Rev. 277, 278-279 (1989). Does this right and duty extend to the attorney consulting with his or her client during a deposition break? A recent commentary has noted "[t]here are few issues more fraught with controversy than the issue as to whether a defending attorney can consult with [his or her client] during a deposition break." Redmond, Advanced Topics in Oral Civil Discovery, 88 Def. Couns. J. 1, 17 (2021).

In a recent case, Pape v. Suffolk County Society for the Prevention of Cruelty to Animals, 2022 U.S. Dist. LEXIS 68430 (EDNY April 13, 2022), U.S. Magistrate Judge James Wicks jumped into this controversy. In a carefully crafted and thoughtful opinion, he addressed three issues implicated in this controversy: (1) Whether an attorney may talk to his or her client during a break in the deposition; (2) If such a discussion occurs in violation of a court rule or order, whether the examining party may then ask the witness/client about the substance of the discussion; and (3) If such a discussion is not per se prohibited, whether the attorney-client privilege precludes in any event inquiry into the substance of the discussion. While Judge Wicks' opinion applied federal law, his discussion of the issues is equally applicable to actions in the New York state courts. Due to its significance, Pape will be the focus of this column.