"You are commanded to appear...." (attorneys being subpoenaed).

• Author: Pope, Daniel J.

"Every lawyer dislikes to take the witness

stand and will do so only for grave reasons.

This is partly because it is not his role; he is

almost invariably a poor witness. But he

steps out of professional character to do it.

He regrets it; the profession discourages it."

--Justice Robert H. Jackson, concurring in

Hickman v. Taylor, 329 U.S. 495, 517 (1947).

You are in-house counsel for a major company, and you have just been served with a subpoena to appear for deposition, or to testify at trial, in a suit against or involving your current or former client. What do you do?

First, get help. The last thing you should do is attempt to give yourself advice. What next?

Be careful. You are probably on a very slippery slope. This article will help. It will discuss circumstances when in-house corporate counsel may be called to testify at deposition or at trial, considerations for the corporate counsel who takes the stand, the dwindling availability of the attorney-client privilege to corporate counsel and, finally, strategies for defeating the subpoena or limiting the scope of the testimony of the corporate counsel.

When In-house Counsel May Be Called

Corporate counsel are more frequently targeted for depositions today than the corporation's outside counsel. This is not surprising because the corporate counsel, as an employee of the corporation, naturally acquires a greater wealth of confidential, corporate information on a regular basis than the corporation's outside counsel. In-house counsel also are more likely to wear different hats as legal counsel, business advisor, and even corporate officer, executive or director. This makes in-house counsel more susceptible to compelled disclosure than outside counsel. The privileges, which normally shield outside counsel from being ordered to disclose confidential corporate information on the stand, often do not protect information obtained by inside counsel when they were wearing a "business hat."

In deciding whether to allow a party to depose an opposing attorney, whether in-house or not, courts traditionally have followed a three-part test first enunciated by the Eighth Circuit in Shelton v. American Motors Corp.: An opposing attorney may be deposed only if (i) there is no other way to obtain the information; (ii) it is relevant and not privileged; (iii) it is crucial to preparation of the case.(1) While corporate counsel may not be the trial attorney representing the corporation in litigation (although this is certainly changing), corporate counsel often assists in preparation for litigation, and thus, the Shelton test applies when the opposing party attempts to subpoena the in-house corporate attorney.(2)

Deposing or examining a corporation's in-house attorney at trial is not a novel legal strategy. Corporate counsel often are called to testify on matters concerning the corporation in patent litigation, internal corporate governance litigation, commercial contract disputes, products liability litigation, spoliation hearings, or criminal prosecutions involving the corporate entity. Corporate counsel also is sure to be called as a witness at deposition or trial in any case in which corporate counsel was a witness to an arguably relevant conversation or event, possesses knowledge of facts relating to the issues, or when corporate counsel is a party or may be a potential party to the dispute.

There could be a variety of motives behind opposing counsel's decision to subpoena corporate counsel to testify at deposition or trial--some good, some bad. Opposing counsel may be attempting to divert attention away from other issues and create a smoke screen to dig up prejudicial and possibly irrelevant evidence from corporate counsel. The opposing party may be attempting to harass, burden or coerce the corporation into settlement by threatening its most significant source of confidential corporate information, the in-house attorney. By casting corporate counsel as a potential witness to the dispute, the opposing counsel may be attempting to have corporate counsel--and perhaps outside counsel closely associated with corporate counsel--disqualified from representing the corporation at trial, thus depriving the corporation of its choice of litigation counsel to the corporation's disadvantage.

...