What was once considered a rarity has now become a trend: parties increasingly seek to depose in-house lawyers. And while courts once viewed the corporate client–in-house attorney relationship as inviolable, those opinions are eroding.
The thought of an in-house lawyer sitting for a deposition raises legitimate concerns of violating ethical mandates, waiving the attorney–client privilege, and disclosing work-product or proprietary information. The questions become what proactive efforts can in-house lawyers implement to reduce the chance of being deposed, and what reactive measures should in-house and outside counsel employ upon receipt of a subpoena or notice of deposition.
Rules and Concerns
In-house lawyers have no blanket exemption from depositions. Civil procedure rules permit liberal discovery of nonprivileged, relevant information. As one court put it, the rules drafters could have included an exception for attorneys but did not; and lawyers “with discoverable facts, not protected by attorney–client privilege or work product, are not exempt from being a source for discovery by virtue of their license to practice law.” (United Phosphorus, Ltd. v. Midland Fumigant, Inc.)
But the lack of an attorney exemption does not equate to a lack of concern. In-house lawyers have an ethical duty to maintain their client’s (employer’s) confidential information. Model Rule 1.6. The corporate attorney–client privilege belongs to the company, not the in-house lawyer, and she therefore cannot reveal privileged information without first obtaining her employer’s consent. And while relevant facts are nonprivileged and discoverable, the communication of those facts to an in-house lawyer is privileged, and it is these privileged communications that in-house lawyers must not disclose.
Other concerns are often in play when parties seek in-house lawyers’ depositions. Lawyers typically cannot serve as fact witnesses and litigation counsel, so parties often seek depositions of in-house lawyers heavily involved in the litigation in order to seek disqualification. Another tactic is to force an in-house lawyer into the uncomfortable position of contradicting other corporate witnesses or disclosing her employer’s bad facts. And then other parties simply want to create an antagonistic, harassing situation as part of their litigation strategy.
The Shelton Rule
Courts take differing approaches to lawyer depositions. One approach, originated in Shelton v. American Motors Co., calls for a preemptive protective order either precluding the lawyer’s deposition altogether or substantially limiting its scope. The Shelton court held that, although lawyers are not immune from depositions, the party seeking the deposition has the burden of showing three factors to secure a lawyer’s deposition: 1) no other means exist to obtain the information; 2) the information sought is relevant and nonprivileged; and 3) the information is crucial to the party’s case preparation. The Shelton rule gained favor with other courts, notably the 6th Circuit, and became the preferred approach for in-house lawyers.
Courts gradually eroded the strict Shelton rule in favor of a more flexible approach. The 2nd Circuit, for example, does not follow Shelton but looks at all relevant facts and circumstances, such as the deposition need, the lawyer’s role in the matter on which discovery is sought, and the risk of encountering privilege and work-product issues. In re Subpoena Issued to Dennis Friedman. Other courts simply prefer the lawyer to sit for the deposition, let the record develop through the normal question-answer-objection situation, and then rule on a question-by-question basis. And the 8th Circuit has explained that the Shelton rule applies more in situations where litigation strategies and privileged information may be revealed, and less in situations where the in-house lawyer served in a business-related role. (Pamida, Inc. v. E.S. Originals, Inc.)
So, the emerging majority standard is that courts are less inclined to preclude an in-house lawyer’s deposition altogether, but will entertain a motion to limit the deposition’s scope. Within that scope, the closer the lawyer-deponent is to the company’s litigation strategy the more likely a preemptive protective order will issue. But courts will likely permit depositions even under a limited scope, and in these situations the in-house lawyer must remain diligent in upholding his ethical and privilege mandates.
The following practical tips should assist in-house counsel in proactively avoiding situations that may call for deposition testimony as well as in-house and outside counsel presented with a notice or subpoena seeking an in-house lawyer’s deposition.
- Avoid appearing like a fact witness. Lawyers who manage litigation or participate as litigation counsel are more likely to be deposed if they engage in business-like activities, such as signing interrogatories as the corporate representative, participating in pre-suit negotiations, or attending board meetings.
- Know your jurisdiction’s approach. While some circuits have announced approaches, many other jurisdictions lack a clear approach to lawyer depositions. Determine at the initial case management conference or at some point before the deposition how the court views lawyer depositions.
- Seek a preemptive protective order. Predeposition protective order motions remain the preferred method to raise the issue with the court. Even if the deposition proceeds, you may limit its scope, apprise the judge of your adversary’s tactics, and set the table for the judge to rule on the inevitable privilege objections.
- Information from other sources. The primary argument to prevent an in-house lawyer’s deposition is to show that the deposing party can obtain the information sought from other sources. Lawyers should ascertain the purported need for the deposition and stand ready to offer alternative witnesses to convey the information.
Retain separate counsel for the lawyer-deponent. Often outside counsel attend the in-house lawyer’s deposition ostensibly representing the lawyer-deponent and the corporation. Separate counsel for the in-house lawyer eliminates any potential conflict-of-interest concerns and allows a separate, unbiased attorney to advise the in-house lawyer regarding ethical mandates and privilege assertions.