Witness - Adverse - Current/Former ClientHome/Table of Contents
You discover that an important witness on the other side of a pending case is a current client of your firm (Client A). You believe that in order to represent your client in the case (Client B), you must depose A, subpoena A's documents, and then cross-examine A at the trial. Change the facts. Client A has not used your firm for anything for about two years. The purpose of this section is to explore the extent to which this discovery and cross-examination could be a conflict of interest. The analysis will be broken down between the current client situation and that of the former client.Current Clients
Cmt.  to Rule 1.7 provides as follows:
[A] directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit.
ABA Op. 92-367 (1992) deals with this situation quite concisely. Following is the Committee's syllabus for the opinion:
A lawyer who in the course of representing a client examines another client as an adverse witness in a matter unrelated to the lawyer's representation of the other client, or conducts third party discovery of the client in such a matter, will likely face a conflict that is disqualifying in the absence of appropriate client consent. Any such disqualification will also be imputed to other lawyers in the lawyer's firm.
The opinion reminds the reader that the conflict rules are based upon the twin concerns of loyalty and confidentiality. Return to Client A in the above illustration. Would not wrenching A's documents from him with a subpoena create serious issues of loyalty? Might you be able to identify what documents to seek based upon your knowledge of what types of documents A keeps and where he keeps them, thus subtly breaching your duty of confidentiality to A? And suppose your discovery causes some of A's information to become public. That would be another way of breaching your duty of confidentiality. Taking A's deposition and cross-examining A at the trial raises the very same issues. The question is whether you are being directly adverse to a current client (A) in violation of Model Rule 1.7(a)(1).
Issues also arise as to Client B. What if your inclination is to protect A, because A is the more important client. You do not want to offend A or cause any breaches of confidentiality. You might be tempted to soft-peddle your discovery and cross-examination. Thus, in the unlikely event you felt your could stay in the case, you would still have to counsel B on these dangers and obtain B's consent under Model Rule 1.7(a)(2).
In criminal cases, another problem appears. Where you have the 1.7(a)(2) issue described in the prior paragraph, you also have a Sixth Amendment/right-to-effective-counsel issue if, for example, Client B is a criminal defendant. (This muddies the analysis in criminal cases; nevertheless, one cannot ignore the criminal cases, because the opinions in civil cases continue to refer to criminal cases in their analyses.)
The following cases and opinions are consistent with the ABA opinion: United States v. Infante
, 404 F.3d 376 (5th Cir. 2005); McConico v. Alabama
, 919 F.2d 1543 (11th Cir. 1990); Kevlik v. Goldstein
, 724 F.2d 844 (1st Cir. 1984); United States v. Jeffers,
520 F.2d 1256 (7th Cir. 1975); McCauley v. Family Dollar, Inc
., 2010 U.S. Dist. LEXIS 116636 (W.D. Ken. Nov. 1, 2010); In re CellCyte Genetic Corp. Sec. Lit., 2008 U.S. Dist. LEXIS 94761 (W.D. Wash. Nov. 20, 2008); Municipal Rev. Services, Inc. v. Xspand, Inc
., 2008 U.S. Dist. LEXIS 20720 (M.D. Pa. March 14, 2008) (court implied that firm could bring in special counsel to depose current clients); In Re Suard Barge Services, Inc
., 1997 U.S. Dist. LEXIS 12364 (E.D. La. August 18, 1997); Ex parte Osbon
, 888 So. 2d 1236 (Ala. 2004); People v. Rhodes
, 524 P.2d 363 (Cal. 1974); Hernandez v. Paicius
, 134 Cal. Rptr. 2d 756 (Cal. App. 2003); In re Infotechnology, Inc
., 582 A.2d 215 (Del. 1990); State v. Reis
, 666 P.2d 612 (Hawaii 1983); Burgos v. Giannakakos
, 1998 Conn. Super. LEXIS 3328 (Conn. Super. 1998); State v. Watson
, 620 N.W.2d 233 (Iowa 2000); Narel Apparel Ltd. v. American Utex Int'l
., 460 N.Y.S.2d 125 (N.Y. App. Div. 1983); Committee on Legal Ethics v. Frame
, 433 S.E.2d 579 (W. Va. 1993); Conn. Op. 99-14 (1999); Md. Op. 81-73 (1981); Mich. Op. RI-239 (1995); Mich. Op. RI-218 (1994); Nassau County Op. 86-46 (1986); Ore. Op. 1991-110 (1991); Pa. Op. 2002-71 (2002); and Tenn. Op. 85-F-92 (1985). Indeed, the former client cases all confirm the analysis, except for the fact that it is not necessary in those cases to analyze the direct adversity issues raised by Model Rule 1.7(a)(1). As will be seen, the analysis shifts to the substantial relationship test under Model Rule 1.9(a). R.I. Op. 95-11 (1995), and Va. Op. 1638 (1995) are somewhat more permissive, but involve getting the relevant clients' consents.
In United States v. Daugerdas
, 2010 U.S. Dist. LEXIS 91862 (S.D.N.Y. Sept. 3, 2010), a criminal case, the court held that different offices of the same law firm could not represent both a cooperating witness and a defendant, even with a screen.
For a wacky deviation from the ABA approach to current clients, see Kevin Jaggers and Bolus v. Hon. James M. Shake
, 37 S.W.3d 737 (Ky. February 22, 2001). Law Firm A represents Party A in a legal malpractice case, in which Law Firm B is the defendant ("Case 1"). Firm A also represents a former associate (Jaggers) of Firm B in an unrelated legal malpractice case ("Case 2"). Case 2 involved Jaggers' activities after he left Firm B. Firm B has expressed an intention to call Jaggers as a witness in Case 1. Firm B has moved to disqualify Firm A in Case 1 because Firm A will have to cross-examine Jaggers, its own client (in Case 2). The Kentucky Supreme Court first stated that it would assume, for purposes of the opinion, that Firm B would, in fact, call Jaggers, and that Firm A would cross-examine Jaggers. Nevertheless, the court ruled that Firm A should not be disqualified. The court held specifically that Firm A's cross-examining its current client, Jaggers, would not be a violation of Kentucky's version of Model Rule 1.7(a)(1). Then, the court did an analysis under the appearance of impropriety standard, still recognized by Kentucky courts. The court said simply:
[T]he mere fact of two attorneys in the same firm representing a party on the one hand and being adverse to that person as a witness in another case on the other hand is too attenuated to create an appearance of impropriety.
The court did not seem to question the standing of Firm B to make the motion, even though Firm B offered no reason why it would be harmed by Firm A cross-examining its former associate, Jaggers. The court did note that Party A had "waived the conflict." That is fine as far as it goes. Clearly, Party A needed to be consulted and consent pursuant to Rule 1.7(a)(2). But, one would have thought that Jaggers, too, should have consented pursuant to Rule 1.7(a)(1), because his own law firm (Firm A) would be cross-examining him.
This opinion is contrary to ABA Op. 92-367 (1992), and the authorities mentioned above. The Kentucky Supreme Court did not discuss the ABA opinion. It cited just two cases, neither having anything to do with the propriety of cross-examining a current client. For that and other reasons Jaggers gets a well-deserved thrashing at Edward C. Brewer & Kelly S. Wiley, Survey: Professional Responsibility, 29 N. Ky. L. Rev. 35 (2002). Referral Relationship and Failure to Cross Examine. Estate of Re v. Kornstein, Veisz & Wexler,
958 F. Supp. 907 (S.D.N.Y. 1997). Paul Weiss referred substantial business to the Kornstein firm. The Kornstein firm represented Re in an arbitration against Bear Sterns, Re's former employer. Bear Sterns was an important client of Paul Weiss, although Paul Weiss did not handle the Re arbitration. A Paul Weiss partner testified against Re in the arbitration. The Kornstein firm lawyer did not cross examine him. In a malpractice action against the Kornstein firm, Re claimed that the Kornstein firm breached its fiduciary duty to him by not telling him about the referral relationship and by not cross examining the Paul Weiss partner. In this opinion the court denied summary judgment to the Kornstein firm on the breach of fiduciary count. Court Implies that Firm Could Bring in Special Counsel to Take Depositions of Current Clients. Municipal Rev. Services, Inc. v. Xspand, Inc
., 2008 U.S. Dist. LEXIS 20720 (M.D. Pa. March 14, 2008). But, in In re CellCyte Genetic Corp. Sec. Lit.
, 2008 U.S. Dist. LEXIS 94761 (W.D. Wash. Nov. 20, 2008), the court rejected that approach. The court allowed it in In re Certain Electronic Imaging Devices
, Inv. No. 337-TA-726 (U.S. Int'l Trade Comm'n Sept.1, 2010); and in State of Iowa v. Smith
, 761 S.W.2d 63 (Ia. 2009). McCauley v. Family Dollar, Inc
., 2010 U.S. Dist. LEXIS 116636 (W.D. Ken. Nov. 1, 2010). Law Firm is handling two putative class actions against Store Chain. In this case the proposed class consists of lower-level store employees whom Store Chain wrongfully forced to work "off the clock" and whom Store Chain wrongfully denied breaks. In the other case ("Other Case") the class would comprise local store managers who were wrongfully denied overtime. In this case Store Chain moved to disqualify Law Firm. In this opinion the court granted the motion. The court noted that Law Firm would almost certainly have to cross-examine in this case managers called by Store Chain, some of whom would be members of the class in Other Case. Thus, that was one of several grounds for granting the motion. Contact with Defendant about Documents for a Different Case not Grounds for Disqualification. Griffin-El v. Beard
, 2009 U.S. Dist. LEXIS 81028 (E.D. Pa. Sept. 8, 2009). Ontario Court Allows Cross-Examination; Not Clear Whether Current or Former Client. G. Raymond Chang Ltd. v. Shopcast Television
, 2008 CanLII 63168 (Ont. Super. Ct. Nov. 28, 2008). Adams v. McNamara
, 2010 U.S. Dist. LEXIS 73670 (W.D.N.Y. July 21, 2010). Law Firm was appointed to represent a prisoner in this civil suit against various medical personnel at the prison. Because there was a likelihood that the defendants would have to call as a witness a prison doctor who was also the brother of a partner at Law Firm, the defendants moved to disqualify Law Firm. In this opinion a magistrate judge held that the mere fact of the relationship would not disqualify Law Firm. The principal argument for disqualification was that the doctor would be motivated to testify favorably for the prisoner. The court rejected that as speculation. Cross-Examining Employee of Client. Lewis v. State,
2011 Ga. App. LEXIS 939 (Ga. App. Oct. 28, 2011). In this criminal
case Defendant is charged with defrauding School District, of which
Defendant was Superintendent. Law Firm is defending Defendant. The
prosecution listed a number of witnesses, one of whom is an employee
("Employee") of Company, a construction firm that did work for School
District. Law Firm represents Company on matters unrelated to this
case, or to School District. Law Firm had no prior relationship with
Employee. The prosecution moved to disqualify Law Firm in this case,
because Law Firm would have to cross examine an employee of Law Firm's
client, Company. The trial court granted the motion. In this opinion
the appellate court reversed. First, the court held that Company and
Employee were not one for conflicts purposes. Second, the appellate
court did not buy the trial court's theory that Law Firm would be
limited in its cross examination of Employee by its fealty to Company.
The court held that the prosecution had not shown the court enough
information about Employee or her importance to Company to establish
that Law Firm would, in fact, be so limited. Both Company and Defendant
had waived the conflict.
Cal. Op. 2011-182 (undated). Here is the committee's digest:
When an attorney discovers at the outset of representation
that the attorney must serve a discovery subpoena for production of
documents on another current client of the attorney or the attorney's
law firm, serving the discovery subpoena in an adverse action such that a
concurrent client conflict of interest arises. To represent a client
who seeks to serve such a subpoena, the attorney must seek informed
written consent from each client, disclosing the relevant circumstances
and the actual and reasonably foreseeable adverse consequences to the
client providing consent.
. Rotunda & Dzienkowski § 1.7-6(c).Former Clients
This discussion is really about a subset of the issue treated at this site at "Former Clients - the Substantial Relationship Test." There, we discuss when a current client becomes a former client, and what is a substantial relationship.
In the following cases the court held that a lawyer could not continue in a case if the lawyer would be required to cross-examine a former client on matters substantially related to work the lawyer had done for the witness: United States v. Moscony
, 927 F.2d 742 (3d Cir. 1991); United States v. Esposito
, 816 F.2d 674 (4th Cir. 1987); United States v. O'Malley
, 786 F.2d 786 (7th Cir. 1986); Kevlik v. Goldstein
, 724 F.2d 844 (1st Cir. 1984); United States v. James
, 708 F.2d 40 (2d Cir. 1983); United States v. Shepard
, 675 F.2d 977 (8th Cir. 1982); Lorber v. Winston, 2012 U.S. Dist. LEXIS 167368 (E.D.N.Y. Nov. 26, 2012) (credibility evidence); Illaraza v. Hovensa, L.L.C., 2012 U.S. Dist. LEXIS 45358 (D.V.I. March 31, 2012); Georges v. Peters
, 2012 U.S. Dist. LEXIS 16517 (S.D.N.Y. Feb. 2, 2012) (but, no client, here); Adkins v. Hosp. Auth. of Houston Co., Ga
., 2009 U.S. Dist. LEXIS 97361 (M.D. Ga. Oct. 20, 2009) (bizarre case); Scantek Medical, Inc. v. Sabella
, 2008 U.S. Dist. LEXIS 104691 (S.D.N.Y. Dec. 12, 2008) (although no finding of substantial relationship); Buschmeier v. G&G Investments, Inc
., 2007 U.S. Dist. LEXIS 85444 (W.D. Pa. Nov. 19, 2007) (examination to discover assets assumed to be adversity, although no finding of substantial relationship); Emmis Operating Co. v. CBS Radio, Inc
., 480 F. Supp. 2d 1111 (S.D. Ind. 2007) ; FMC Technologies, Inc. v. Edwards
, 420 F. Supp. 2d 1153 (W.D. Wash. 2006); State Farm Mut. Auto. Ins. Co. v. Red Lion Medical Center, Inc
., 2003 U.S. Dist. LEXIS 6600 (E.D. Pa. March 27, 2003); Smith & Nephew, Inc. v. Ethicon, Inc
., 98 F. Supp. 2d 106 (D. Mass. 2000); Selby v. Revlon Commissary Sales, Inc
., 6 F. Supp. 2d 577 (N.D. Tex. 1997); Pyle v. Meritor Savings Bank
, 1994 U.S. Dist. LEXIS 5408 (E.D. Pa. 1994); Bobkoski v. Bd. of Educ
., 1991 U.S. Dist. LEXIS 5020 (N.D. Ill. 1991); United States v. Cheshire,
707 F. Supp. 235 (M.D. La. 1989); Cuento v. Le Vien Homes, Inc
., 2007 Cal. App. Unpub. LEXIS 7496 (Cal. App. September 17, 2007) (slightly "one-off"); State of Louisiana v. Tensley
, 955 So. 2d 227 (La. App. April 4, 2007) (conviction reversed because lawyer for co-defendant cross examined other co-defendant and former client in the same proceeding); State v. Needham
, 688 A.2d 1135 (N.J. Super. 1996) (emphasizes appearance of impropriety test retained by New Jersey in its version of the Model Rules); and Burgos v. Giannakakos
, 1998 Conn. Super. LEXIS 3328 (Conn. Super. 1998); Areia Concrete v. 961175 Ont. Ltd
. 2012 ONSC 391 (CanLII) (Ont. Super. Ct. Jan. 17, 2012). But, see Holmes v. Adrian Art Deco Rivera Hotels & Restaurants, Inc
., 2000 U.S. Dist. LEXIS 7759 (S.D. Fla. 2000) (lawyer retained no confidential information from prior representation of witness and, therefore, not disqualified). Deposing Former Client. Marsh Supermarkets, Inc. v. Marsh
, 2011 U.S. Dist. LEXIS 54473 (S.D. Ind. May 20, 2011). Law Firm had done estate planning for Former Client. Law Firm wants to depose Former Client in this case. (Former Client is not a party.) In this opinion the court found that the relationship between the estate planning and this case is substantial enough to bar Law Firm from taking the deposition. Montgomery v. Superior Court
, 2010 Cal. App. LEXIS 1165 (Cal. App. July 16, 2010). Medical malpractice case. The plaintiff designated Expert to testify on the medical standard of care. The defendant moved to disqualify Expert because the defendant's lawyer had represented Expert some ten years earlier in a medical malpractice case. The concern was that the defendant's lawyer would be hamstrung in cross-examining Expert. In this opinion the appellate court ruled that Expert's willingness to give an unconditional waiver of the conflict solved the problem. Raiola v. Union Bank of Switzerland, LLC
, 230 F. Supp. 2d 355 (S.D.N.Y. 2002), involved a securities arbitration between a broker/dealer and a customer and was brought to enforce the award. The customer complained that the broker/dealer's law firm had cross-examined an individual broker, whom the law firm had represented in the past. The court held first that the customer had no standing. The court went on to say that, standing aside, the customer did not make an adequate showing that the law firm had misused information it had gathered in the earlier representation. In that connection, the court noted that the only document used to cross-examine the former client was a public document. "Temporary Substitute Counsel."
In the following cases and opinions, the courts approved bringing in special or substitute counsel to cross-examine the former clients: United States v. Britton
, 289 F.3d 976 (7th Cir. May 8, 2002); In re Deposition Subpoena
, 2006 U.S. Dist. LEXIS 90345 (N.D.N.Y. Dec. 13, 2006); United States v. Canty, 2006 U.S. Dist. LEXIS 86422 (E.D. Mich. Nov. 30, 2006) (appeared to be the case; lawyer not disqualified because he said he would not cross-examine former client); Sykes v. Matter
, 316 F. Supp. 2d 630 (M.D. Tenn. 2004); Advanced Manufacturing Technologies, Inc. v. Motorola, Inc
., 2002 U.S. Dist. LEXIS 12055 (D. Ariz. July 3, 2002); United States v. Fawell,
2002 U.S. Dist. LEXIS 10415 (N.D. Ill. June 11, 2002); Swanson v. Wabash, Inc., 585 F. Supp. 1094 (N.D. Ill. 1984); and Ill. Op. 05-01 (Jan. 2006). Caution, however; the court in Cheshire, supra
, rejected that approach, as did Ariz. Op. 91-05 (1991); UMG Recordings Inc. v. MySpace
, 526 F. Supp. 2d 1046 (C.D. Cal. 2007) (court skeptical about independent counsel for discovery), and McGriff v. Christie,
2012 U.S. App. LEXIS 10830 (11th Cir. May 30, 2012) (not "practical")
. "Accommodation Client/Primary Client" Distinction
. See the discussion of this concept at "Former Clients." Scroll down to "Accommodation Client." Reading that discussion will assist the reader in understanding Skidmore v Warburg Dillon Read LLC
, 2001 U.S. Dist. LEXIS 6101 (S.D.N.Y. 2001). Facts: Matthews hired Brickman to represent him in possible age discrimination claim. Shortly thereafter, Matthews' co-worker, Skidmore, hired Brickman to represent Skidmore in an age discrimination claim. Matthews has settled his claim, so he has become a former client of Brickman. Matthews may be a witness in the Skidmore case (this case), and Brickman may have to cross-examine Matthews. Because of the possible cross-examination, Warburg moved to disqualify Brickman. The court ruled that Warburg had standing to bring the motion, but denied it. The court did not use the "accommodation client/primary client" rubric, but applied the concept by citing Allegaert v. Perot
, 565 F.2d 246 (2d Dir. 1977), the leading case on the subject. The court said:
. . . whether or not Matthews and Skidmore technically consented to dual representation, the facts remain that: (1) Brickman represented the two clients against the same defendant, (2) each client's claims were ADEA claims arising out of contemporaneous terminations after the same corporate merger, (3) each client worked in the same (relatively small) department at [Warburg], and (4) each client was aware that the other was being represented by the same counsel for a period of months (until Matthews settled his case). It would be unreasonable for neither Matthews nor Skidmore to assume that their shared counsel did not learn facts about the context of the Warburg Dillon Read/Swiss Bank Corp. merger in one client's case that would prove useful in the other case.
As to cross-examining Matthews, the court said further:
If Matthews's trial testimony is consistent with his deposition testimony, then it is indeed likely that Brickman would attempt to impeach Matthews's credibility. This may be embarrassing to Matthews; it may even be unseemly to treat a former client as a hostile witness. However, there is no tangible prejudice that would result, and an "appearance of impropriety is simply too slender a reed on which to rest a disqualification order except in the rarest cases." Board of Education v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979). Thus, defendant's motion is denied on these grounds as well.
"Choice of Counsel" Prevails
. In most of the cases cited above, the courts pay lip service to the desirability of litigants having the counsel of their choice. They then rule that the conflict of interest and/or Sixth Amendment argument trumps the right to counsel of one's choice. One case where the court found that the defendant's right to the counsel of his choice should prevail is United States v. Cunningham
, 672 F.2d 1064 (2d Cir. 1982). The court felt that the possibility of the conflict of interest causing harm was relatively remote. Chronology Counts: Lawyer in Case First
. L.A. County Op. 513 (2005). When may a lawyer try a case, in which a former client will testify as an expert? The lawyer may do it if the lawyer does not have any information about the former client that is relevant to the case. If the lawyer does have such information, the answer turns on chronology. If the expert has been designated before the lawyer appears, he must turn down the representation. If the expert is designated after the lawyer appears, the opinion states the following:
[T]he attorney may ethically seek an appropriate order from the court, which could include that the expert be precluded from testifying if another expert is available to the opposing party; that the former client’s decision to serve as an expert constitutes a waiver of the privilege; or that the former client may not serve as an expert witness unless the former client agrees to a limited waiver of any duty of confidentiality as it pertains to the pending case.
In United States v. Henke
, 222 F.3d 633 (9th Cir. 2000), the issue was whether the lawyer could cross examine the member. Pursuant to the joint defense arrangement, the parties had exchanged confidences. Because the lawyer could not cross examine the member, his client's conviction was reversed. Medical Diagnostic Imaging, PLLC v. Carecore Nat., LLC
, 2008 U.S. Dist. LEXIS 23596 (S.D.N.Y. March 25, 2008). Magistrate judge held that former counsel could cross examine former clients where relationship between this case and former representation insignificant. Active Network, Inc. v. Monster Worldwide, Inc.,
2012 U.S. Dist. LEXIS 67969 (S.D. Cal. May 15, 2012). This opinion
involves a case pending in New York but subpoenas issued by the Southern
District of California at the request of the defendant. The plaintiff
moved to quash the subpoenas because a lawyer in defendant's law firm
had previously represented the plaintiff. The magistrate judge writing
this opinion acknowledged that had the lawyer represented the plaintiff
or obtained confidential information from the plaintiff, that might be
grounds for quashing the subpoena. However, the court found, as a
matter of fact, that the lawyer had only represented an employee of the
plaintiff, not the plaintiff itself, and had not obtained confidential
information about the plaintiff. Thus, the court denied the motion to
. See § 129, cmt. d, and Reporter's Note to cmt. d. Other State Ethics Opinions
. Ala. Op. 90-25 (1990); Ariz. Op. 91-05 (1991); and Va. Op. 1407 (1991). Law Reviews
. Gary T. Lowenthal, Successive Representation by Criminal Lawyers,
93 Yale L.J. 1 (1983); Ronald D. Rotunda, Resolving Client Conflicts by Hiring “Conflicts Counsel,”
62 Hastings L. J. 677 (2011).Home/Table of Contents