Have you ever thought that being an in-house attorney will insulate you from being deposed as a witness?? Not so fast! The role of in-house counsel in the employment context has expanded, the legal landscape is changing, and, now more than ever, in-house attorneys are being deposed as fact witnesses. The increase in deposing in-house counsel stems, in part, from a failure to take the proper precautions to avoid being deposed. In-house counsel's participation in internal investigations, layoffs, and discipline and termination decisions increases the risk of being deposed. But there are ways to minimize that risk, particularly by recognizing the different roles of in-house counsel and how acting in a business capacity can jeopardize claims of privilege protection. In the next few issues of this employment law blog, Reed Smith will offer practical tips on how in-house counsel can avoid being deposed.
Practical Tip No. 1: In-house counsel should avoid being a decision-maker. Without question, the decision-maker for an adverse employment action will be a key witness if the matter goes to litigation. Employment decisions, including discipline and termination decisions, therefore should be made by persons in human resources or in the employee's line of business (such as a supervisor), not by the in-house lawyers offering legal advice. Of course, in-house counsel can offer her or his legal opinion about an employment decision, but the ultimate decision should be made and conveyed by someone other than in-house counsel and outside of counsel's presence.
This practical advice is to avoid in-house counsel from unknowingly being part of the “decision tree” and being subject to avoidable depositions in “run-of-the-mill” employment cases. At the same time, certain employment situations will require the advice of in-house counsel on the decision and/or the investigation. In those situations, in-house counsel should understand in advance that s/he likely may be a witness in support of the employer’s decision.