Attorney Client Privilege During Depositions is Not Absolute

Anything and everything you say to your lawyer is privileged, right? No. Like any rule, there are exceptions. In this longstanding rule and principle of our legal system there are only a few general exceptions. The communication must be private; that is, if your friend is in the room when you tell your personal injury attorney how the car accident happened, the conversation is not privileged. There are exceptions regarding future intentions regarding committing a crime as well.

Nevertheless, these exceptions are few and the privilege is broad and not usually challenged.

What About Private Attorney Client Conversations During Depositions?

In a Superior Court ruling in Massachusetts recently, Judge Robert B. Gordon ruled that when it seems that the attorney has clearly coached a deponent to change an answer in a deposition, the deponent must answer questions about the private communication. The deposing attorney may ask questions to test the privilege and the credibility of the witness around that line of questioning.

The Court ruled that during a question, or a line of questioning, the witness may not take a break to talk with his or her attorney.

According to reports, the defendant property owner in this case slip and fall case retained Morrison Mahoney, a well known insurance defense firm. During the deposition of an employee of the defendant property owner, the attorney and client’s employee conferred privately and that conference was the subject of a new line of questioning by the deposing attorney. The deponent was testifying about who was responsible for maintaining the property where the plaintiff fell and was injured. After the insurance defense attorney took a phone call, the attorney and the witness conferred privately and then the deponent came back and changed his testimony

Balancing Test

It seems that it is somewhat of a balancing test: the amazing and wonderful right we have to the attorney client privilege verses the conduct of attorneys who clearly coach their clients. I have taken numerous depositions in which the insurance defense attorney is clearly dictating answers by words, interruptions, body language, requesting breaks and other tactics. Under Judge Gordon’s ruling, you cannot break to confer during a line of questioning regarding an “identifiable subject matter” without being subject to questions about the attorney client conversation.

Hire an Experienced Attorney for Your Personal Injury Case

Injury cases can take unusual turns. Once a personal injury case is put into suit, it is highly likely that there will be a deposition of the plaintiff injured party. After you respond to written questions, called interrogatories, and produced documents pursuant to a formal request called a request for production of documents, you will be deposed. A deposition is simply testifying in response to questions, under oath, about a broad, a very broad, range of topics that are, or could be, related to the issues in the case. A deposition is a formal proceeding although not in a courtroom.

Depositions can take hours. Wherefore, you must prepare. Your attorney should thoroughly prepare you for the types of questions that will be asked. It is not clear exactly what happened in the injury case we discuss above, but it may be that the insurance defense attorney did not thoroughly prepare the client. Or it may be that, after extensive preparations, the witness forgot, or simply needed some reflection. The important lesson is to prepare, get on the same page, and testify honestly in your deposition. Retain an attorney with experience.

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