Most courts require a litigant seeking to depose the adversary’s lawyer to meet a fairly heavy burden. However, in-house lawyers who perform functions other than as pure legal advisors may find themselves at risk of being deposed.
In United States v. Philip Morris Inc., 209 F.R.D. 13, 17 (D.D.C. 2002), the court allowed in-house lawyers at several tobacco companies to be deposed, because the companies “knowingly assigned substantial non-legal non-litigation responsibilities, including corporate, business, managerial, public relations, advertising, scientific, and research and development responsibilities” to the in-house lawyers.
Although it is difficult to draw any lessons from decisions dealing with the attorney-client privilege in the context of tobacco companies (because the tobacco companies nearly always lose privilege fights), in-house lawyers would be wise to remember that their additional duties may subject them to depositions.