Lawyer accepts engagement with P and files lawsuit against D. In discovery, Lawyer discovers C is a key witness that might also have in his possession documents that are relevant to the litigation. C, however, is a current client of Lawyer in an unrelated matter.
Can Lawyer examine C as an adverse witness and/or conduct third party discovery of C?
This scenario was squarely addressed in ABA Formal Opinion 92-367 (Lawyer Examining a Client as an Adverse Witness, or Conducting Third Party Discovery of the Client).
Under the facts of that opinion, a lawyer who has a doctor as a general client is faced with a situation where he will have to cross-examine the doctor as an adverse expert witness in a medical malpractice case.
The opinion focused its analysis on Model Rule 1.7 Conflict of Interest: Current Clients as it existed in 1992, before the Ethics 2000 Commission’s (E2K) inspired amendments to the Rules in 2002.[1]; It cited to the provisions of the rule that addressed representations directly adverse to clients and also to situations where a lawyer’s “representation of a client may be materially limited by the lawyer’s responsibilities to another client.”
The committee said that it was likely that there would be direct adverseness that would be disqualifying absent client consent since the lawyer’s duty of loyalty to both his witness and litigation clients would be compromised. There was also the risk that the lawyer could breach his duty of confidentiality to the client-witness and that the lawyer’s personal interest in keeping the witness as a client might result in material limitations on the lawyer’s ability to aggressively cross-examine the witness on behalf of his litigation client.
The committee also referred to Model Rule 1.8(b) Conflict of Interest: Current Clients: Specific Rules, which prohibits a lawyer from using “information relating to representation of a client to the disadvantage of the client unless the client gives its informed consent.”
The opinion went into some detail explaining how these various conflicts can affect the quality of the representation. For example – when discussing the lawyer’s own personal and financial interest conflicts, it talked about how these interests might cause the lawyer to “soft pedal” his examination of his client/witness.
The committee then went on to consider the implications under Model Rule 1.10 Imputation of Conflicts of Interest: General Rule, stating that since the client’s lawyer would be prohibited from examining the client due to a conflict under Rule 1.7 so would all the lawyers in the firm under the principles of imputed disqualification.
The opinion then considered whether the lawyer could withdraw from one of the representations, stating that if one of the representations is prospective only and the conflict is clearly foreseeable, then the lawyer should withdraw from the prospective representation.
The committee noted that it may be a much more difficult question if both representations are well under way and it suddenly becomes apparent that the client/witness will need to be deposed.
At the conclusion of the opinion, the committee suggested that depending on the circumstances, a possible solution might be to retain outside counsel to conduct the examination, citing to U.S. v. Jeffers 520 F.2d 1256 where Judge John Paul Stevens who was then sitting on the Seventh Circuit Court of Appeals wrote: “there is nothing in the record suggesting any reason why the lawyer could not have been made an offer to have some other lawyer retained for this limited purpose.”
Since the issuance of Formal Opinion 92-367, some state bar ethics committees have weighed in on this issue.
Connecticut Bar Opinion 99-14 addressed a situation where a lawyer was representing a mother who was seeking to have her child receive special education services. The child’s teacher was also a client of the lawyer. As part of the litigation, the lawyer would have to call the teacher as an adverse witness to show that the child’s current school was inadequate to meet the child’s needs. Both teacher and the mother had given the lawyer their consent to the representation.
The Connecticut Committee found that the lawyer could not have reasonably concluded that that the cross examination of the teacher would not be limited by the lawyer’s duty of loyalty to the teacher and that it was inappropriate to ask for client consent.
California Opinion 2011-182 came at this question from a slightly different angle, addressing a situation where the lawyer discovers at the outset of the litigation that another of his clients will be a necessary witness. The opinion goes into considerable detail about the types of disclosures that would need to be made to the clients in order to get their informed consent. The opinion also referred to caselaw in California that questioned whether an outside firm brought in to conduct the examination of the client/witness would be truly independent of the conflicted firm since it may be difficult to establish that the new firm is truly independent from the hiring firm.
See also Texas Bar Opinion 608 (2011) (…the possibility of an organization lawyer having to cross-examine a current client normally creates a conflict that is imputed to all lawyers; unless it obtains the informed consent of both clients, it is disqualified from the child-custody representation.)
New York City Bar Opinion 2001-3 (2001) follows ABA Formal Opinion 92-367 with respect to the suggestion that the conflicted law firm retain outside counsel to conduct the examination:
To be sure, “it will ... frequently be the case that a lawyer’s taking discovery, whether testimonial or documentary, on behalf of one client, of a third party who is also a client, will present such direct adverseness, so as to be disqualifying under Rule 1.7(a)” ABA 92-367 (October 16, 1992) at 2-3. In circumstances such as these, separate counsel may be brought in for the purposes of issuing the subpoena and taking discovery from the non-party client.
Lawyers who are faced with cross examining a current client as an adverse witness or conducting third party discovery of the client may face many thorny conflicts issues.
For further information, check the rules of professional conduct, ethics opinions and case law of the applicable jurisdiction. As always, your state or local bar association may also be able to help.
[1] Although the rule here might not dictate a different result were this opinion issued today, as a research note, it is important to always keep in mind the issue date of ABA, state and local bar association ethics opinions and the rules of professional conduct that were in effect on the date of their issue. Differences between state rules can influence the conclusions reached in a particular opinion, and changes to the Model Rules over time can also affect the disposition of ABA ethics opinions; a recent example being the withdrawal of two Formal ABA Opinions on inadvertent disclosure from the early 1990s due to the E2K amendments to Model Rule 4.4. (for further information, see the October 2006 Eye on Ethics column, "Return to Sender" Revisited.)