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Was the depo set unilaterally? You should be able to file an MPO on the depo'd attorney's testimony and layout stipulations on work product and internal/client communications. That said what in earth was outside counsel thinking?
Well, set unilaterally by outside counsel that we retained, when they conferred with opposing counsel. Had it been me, I would have moved to quash and/or in the alternative MPO on the depo, but now opposing counsel, predictably, filed something with the court noting the agreement. So that MTQ/MPO might not be so effective at this point, at least in terms of preventing the depo altogether.
Doesn’t really sound like legal malpractice per set but I would certainly never set a client witness for deposition without talking to the client.
It’s not that uncommon to depose attorneys in Florida. I say it’s not legal malpractice per se because what’s the damage? You need duty, breach, causation, damages. Sure the lawyer might have been able to get a PO precluding the depo. But that would have (1) cost money and (2) there isn’t any prohibition on deposing a lawyer. I’ve been a part of plenty lawyer depos in Florida both in mal cases and non-mal cases.
As an in-house counsel I’d be more pissed about my lawyer scheduling an employee depo without consulting me. By doing that they in effect precluded the client from making a decision on whether to fight the subpoena or not.
Just the depo doesn’t do anything. Now if the lawyer fails to preserve the privilege at the depo, that could be a different story. A lot of times when a lawyer gets deposed it’s literally just objections to privilege the entire time.
Florida courts don’t usually like to do POs in advance so it could be a more cost effective strategy to just object to everything then put the burden on the deposing party to move to compel. Which the court will almost certainly view skeptically and with annoyance if there isn’t a clear non-privilege reason for the depo.
I’ve dealt with this issue before. You seem familiar with the case law, so I’m not going to get into that. I’d DEFINITELY file a motion to strike the notice of deposition and file an emergency motion for protective order. If it’s like you’re saying and they’re after privileged information, I can’t think of a single judge who would allow this to happen.