Scruples: The Lawyer as Witness

Vol. 38 No. 1

The author is with Armstrong Teasdale, LLP, St. Louis, and teaches legal ethics at Washington University School of Law. Please send feedback or questions for future columns to mdowney@armstrongteasdale.com.

Dropping into a waiting chair, Paradox wasted no time. “Ethox, I’m in trouble. I need your help.”

“What’s wrong?” Ethox replied, looking up from a stack of research.

“I was helping Senior Litigator on the Jay-Kaye Partnership dissolution litigation. Our client Jay is seeking a preliminary injunction against his former partner Kaye. I drafted all the pleadings and was looking forward to some exciting work on the case. But now Kaye has filed a motion to disqualify me and the firm. Kaye claims that I am a material witness and that under ABA Model Rule 3.7, the entire firm and I should be disqualified from the case. Is this right?”

 

“Probably not,” Ethox answered. “But it is a common misunderstanding of Rule 3.7. Rule 3.7 seeks to protect the fact finder—the judge or jury—from confusion by prohibiting a lawyer who serves as a witness in a proceeding from also serving as an advocate in that same proceeding.”

“The good news about Rule 3.7,” Ethox continued, “is that its impact is limited to the individual lawyer. Its effect does not impute or spread to other lawyers in a law firm. Thus, if you are a witness, you cannot be both an advocate and a witness at trial or other in-court proceedings. But you can still work behind the scenes, on pretrial matters, for instance, and perhaps even at depositions and the like, as long as the transcripts would not be used at trial and reveal your dual role. Moreover, other lawyers at the firm—including Senior Litigator—can still argue the case in court and handle proceedings without limit, even if Rule 3.7 limits your participation. After all, Rule 3.7 would not apply as long as Senior Litigator and other firm lawyers are not themselves acting as both advocate and witness.”

“Oh, that is good news,” Paradox sighed.

Ethox proceeded cautiously. “Unfortunately, that may not end the analysis of whether we should be handling the case.”

“Really? What do you mean, Ethox?”

“Why does Kaye think you are going to be a witness? Who were our clients, and what legal services did we provide?” Ethox asked.

“Jay has been a client for a very long time. The firm also provided tax advice to Jay-Kaye Partnership several years ago, but that relationship ended. Then, a few months ago, Jay and Kaye started fighting. We advised Jay, and I helped draft some amendments to the Jay-Kaye Partnership agreement. Now Kaye claims those amendments, and the process under which they were adopted, may be relevant to the litigation.”

“I was afraid it was something like this. In addition to the relatively limited restrictions in Rule 3.7, we need to make sure that our conduct conforms to all the Rules of Professional Conduct, including the conflict of interest rules, such as Rules 1.7 and 1.10.”

“Of course,” Paradox responded.

“Well, under Rule 1.7, a lawyer has either a consentable or non-consentable conflict whenever there is a significant risk that the representation of a client may be materially limited by the obligations the lawyer owes to a current or former client or the personal interests of the lawyer. And under Rule 1.10, any such Rule 1.7 conflicts generally impute to the entire firm, preventing anyone at the firm from handling the work without appropriate client consent.”

“Jay is only suing Kaye, and our firm has only done work for the partnership, not Kaye,” Paradox pressed. “How could we have a Rule 1.7 conflict?”

“Rule 1.7(a)(1) deals with direct adversity between current clients, such as one client suing another. Since Kaye is not a client, you are right, Rule 1.7(a)(1) is not implicated. But Rule 1.7(a)(2) involves not just client-versus-client conflicts, but obligations to third parties or personal interests as well. A Rule 1.7(a)(2) conflict may arise here, for example, because our firm provided tax advice to Jay-Kaye Partnership in the past. If that information is relevant and still confidential, our obligation to keep the partnership’s confidences might impair our ability to press Jay’s claims. Then, we would need to get Jay’s consent before we could proceed. In fact, if that is the case, we might even need to get the partnership’s consent under Rule 1.9.”

“I don’t think that is very likely. The partnership has not been a client for a long time. Plus our tax work was pretty limited, and the lawyers who did the work are now gone.”

“That is good to hear,” Ethox continued, “but it does not end our analysis under Rule 1.7(a)(2). The firm may also have a concurrent conflict of interest under Rule 1.7(a)(2), for example, because the litigation between Jay and Kaye may become litigation about our past legal work, whether we committed malpractice in helping amend the partnership agreement. Then there may be sufficient risk for a conflict to arise under Rule 1.7(a)(2)—for example, that we would alter Jay’s litigation strategy or pressure Jay to settle to protect the firm from malpractice.”

“Oh.” Paradox’s spirits continued to sink.

“The good news is that Kaye probably lacks standing to disqualify you and the firm for such a conflict. But we need to decide how great such a risk is, whether it would constitute a significant risk under Rule 1.7. Also, if there is such a risk, we need to decide whether we can proceed with the case, after getting Jay’s informed consent to the conflicted representation, or whether the conflict is so great that we should not even seek Jay’s consent under Rule 1.7(b).”

“I sure hope we can avoid asking Jay for a conflict waiver. And I doubt we can get a waiver from the partnership, if we need one, because of the litigation.”

“Hopefully, we don’t need a waiver from either Jay or the partnership. But if we do have a consentable conflict, under any of these rules, we should obtain the required conflict waiver,” Ethox offered. “After all, particularly if something goes wrong with the case, an unwaived conflict could create substantial legal and ethical risks for the firm. And if there is a conflict, we definitely need to ensure we can provide competent and diligent representation to Jay. Otherwise, Rule 1.7(b) (1) will not let us seek a waiver.”

Paradox gulped audibly.

“Don’t worry yet, Paradox. Let me finish this section of the brief, and then we can meet, go over the issues, and involve Senior Litigator in deciding what we should do going forward.”

“That sounds great, Ethox. It really is good to have a risk management lawyer at the firm.”

 

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