In February 2021, the District of Columbia Bar published an advisory ethics opinion examining certain recurring conflicts of interest issues related to witnesses. See D.C. Bar Legal Ethics Opinion 380 (2021). As part of the job, lawyers obtain information from their clients in the course of representation. Obtaining information from current or former-client witnesses often gives rise to a variety of considerations. Conflicts of interest under Rule 1.7 and 1.9 can arise in a multitude of ways when clients and former clients know, or may know, facts related to litigation. For example, some clients may not want to testify as witnesses and, therefore, may not want to be subpoenaed. On the other hand, some witnesses may want to obtain an advantage from appearing as a witness.
Often, the interests of a client-witnesses can conflict with the interests of other current or former clients. The D.C. Bar Legal Ethics Opinion 380 addresses when a witness-conflict arises, whether it is imputed to the entire law firm, and whether the conflict is waivable by the affected clients.
Practice Scenarios
Issuing subpoenas to current or former clients who do not want to testify
The issuance of a subpoena to a current client, or to a former client in a substantially related matter, will ordinarily, but not always, result in a conflict.[1] According to Ethics Opinion 380, “subpoenaing a current client creates a conflict only if the client objects, or if it is reasonably foreseeable that the client will object to any aspect of the subpoena or to the burden and costs it creates.” See D.C. Bar Ethics Op. 380 at 432. For example, a client-witness, or former client, may want to testify but may prefer to receive a subpoena because the witness may receive a financial benefit in connection with a deposition only if a subpoena were issued. Here, there would be no conflict of interest. On the other hand, if the client-witness or former-client witness, did not want to testify, issuing a subpoena for that witnesses would create a conflict.
Ethics Opinion 380 examines several scenarios:
- Rule 1.7(a) – Current clients’ adverse positions or interests in the same matter: When a lawyer undertakes the joint representation of a litigation party and a witness in the same litigation, Rule 1.7(a) prohibits the lawyer from subpoenaing the witness on behalf of the party if the witness would not want to testify for any reason. Such a conflict could arise in a joint representation of an employer and an employee-witness whose interests appear aligned at the beginning of a litigation but which later disagree on factual issues or substantive issues.
- Rule 1.7(b) – Concurrent clients’ adverse positions or interests not in the same matter: When a lawyer represents a subpoenaing litigation party and at the same time, in an unrelated matter, represents a client who happens also to be a witness in the party’s case, even if the client-witness is represented by another law firm in the litigation, a conflict arises under Rule 1.7(b). Under Rule 1.7(b)(1), a conflict would arise if a matter involved a specific party or parties and “a position to be taken by one client in a matter is adverse to a position taken or to be taken by another client in the same matter even though the other client is unrepresented or represented by a different lawyer.” However, conflicts such as these are waivable and, under Rule 1.7(c), a lawyer may seek informed consent to the lawyer’s continued representation. Conflicts under Rule 1.7(b) present as client-witness interests, client-party interests, and in some circumstances, conflicts from the lawyer’s own interests.
- Rule 1.9 – Former-client adverse positions or interests: Rule 1.9 prohibits a lawyer who has formerly represented a client in a matter from representing another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent. Therefore, a lawyer who is considering issuing a subpoena to a former client must consider whether the current matter is “the same or . . . substantially related” to the former client’s matter, and whether issuance of the subpoena would be considered “materially adverse.” In evaluating whether the matters are substantially related, the lawyer should consider whether they involve the same transaction or legal dispute or if there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.
Cross-Examining current or former clients
- Current Clients in Same Case: If a lawyer were representing both a party and a witness in the same case, Rule 1.7(a) would prohibit any cross-examination of the witness adverse to any position that the witness took on direct examination. Informed consent could not remove this conflict. However, the Committee concluded that “there may be circumstances in which a lawyer could cross examine a client-witness who testifies adversely to a client-party on direct examination without running afoul of Rule 1.7(a) with the informed consent of both the client-witness and client-party.” See D.C. Bar Ethics Opinion 380 at 433.
- Current Clients in Unrelated Matters: If a lawyer represented a party in litigation and if a current client of the lawyer in an unrelated matter also happened to be a witness in that litigation, while represented by other counsel, Rule 1.7(b)(1) would preclude any cross-examination of the witness adverse to any position that the witness took on direct examination. However, the lawyer could, after obtaining the informed consent of each client, participate in the cross-examination of the witness. This conflict is waivable pursuant to the terms of Rule 1.7(c)
- Former Clients: The same interests, conflicts and informed consent concerns raised with current clients are equally applicable to former clients depending on the timing of the facts, if a lawyer cross-examined a former client-witness in any matter that was the same as or “substantially related” to a matter in which the lawyer had formerly represented the witness. Evaluating whether two matters are “substantially related” under Rule 1.9 requires the lawyer to not only consider whether they involve the same transaction or legal dispute, but also whether there “is a substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” See D.C. Ethics Opinion 380.
Best Practice Tips
The D.C. Ethics Opinion 380 suggests the following practice tips to help identify, prevent, and resolve conflict-of-interest issues related to witnesses:
- To facilitate early identification of potential conflicts of interest involving witnesses, a lawyer could consider including the names of potential witnesses (including experts) and other sources of facts in conflict checks and then supplementing checks as additional names arise. Depending on the size of a law firm, it might circulate conflict checks to lawyers in addition to database checking, and it could encourage lawyers to review checks regularly.
- To facilitate resolution of potential conflicts of interest related to witnesses, a lawyer, in advance of issuing a subpoena, might attempt to discuss it with the client-witness, assuming such discussion would not violate the Rule 1.6 interests of the client-party. The discussion could include the suggestion that the client-witness consult with independent counsel.
- More generally, advance waivers of conflicts of interest relating to discovery or other witness-related issues could be discussed with prospective-clients at the beginning of attorney-client relationships. As explained in Comment [31] to Rule 1.7, advance waivers are permissible only if the prerequisites of the rule – namely “full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation” – are satisfied.
- Regarding potential client-parties, a lawyer could discuss the use of scope limitations and/or engagement of conflicts counsel to take discovery from, or to cross-examine, other clients of the lawyer to avoid conflicts of interest.
- Joint representations sometimes develop witness conflicts, which might be addressed by advance agreements and consents. For example, joint clients could agree to maintain confidentiality of jointly shared facts and advice. They also might agree in advance to procedures for addressing downstream conflicts, including whether an unwaived conflict would require the lawyer’s withdrawal from the representation of all or only some of the joint clients. Advance agreements also sometimes address how client information would be handled after withdrawal.
- In any organizational setting, warnings should be given to employees to avoid inadvertent creation of attorney-client relationships that could create conflicts.
[1] The conclusion reached by Ethics Opinion 380 diverges from other Ethics Committees that have examined the issues. “For example, the California Standing Committee on Professional Responsibility and Conduct concluded that serving a discovery subpoena “is an adverse action such that a concurrent client conflict of interest arises.” See D.C. Ethics Op. 380 at 432. However, the Opinion notes that other jurisdictions have reached results similar to the Committee’s conclusion in Opinion 380. “The New York City Bar was not so absolute in its approach, concluding in Opinion 2001-3 that “[s]ubpoenaing a current client on behalf of another current client ordinarily entails a conflict of interest that requires that the attorney obtain informed written consent from both clients.” (emphasis added.) On the related subject of cross[1]examining a client, the ABA in Formal Opinion 92-367 opines that cross-examination “will likely” constitute a conflict. (emphasis added.)” Id.
