January 23, 1990
A lawyer may represent a witness on a matter arising from the lawyer's representation of a former client, provided that (1) the interests of the witness are not materially adverse to the interests of the former client, (2) the lawyer does not use information relating to the representation to the disadvantage of the former client, and (3) the lawyer has no knowledge that the witness is pursuing a course of conduct that is illegal or fraudulent.
References: MRPC 1.2(c), 1.7(b), 1.9(a), 1.16(a).
A lawyer was retained to represent a defendant against a criminal charge of solicitation to commit murder. The charge was based exclusively on a statement given to police by a witness, an acquaintance of the defendant. When testifying at the first court hearing in the prosecution of the defendant, the witness recanted the incriminating statement and asserted that it was solely the product of duress resulting from threats made by police. Consequently, the criminal proceeding against the defendant was dismissed.
The prosecutor has indicated that charges will be brought against the witness alleging that the testimony exculpating the defendant and the allegations of duress are untrue and constitute perjury. The witness seeks to retain the same lawyer in defending against the perjury charges. The lawyer asks whether, as the result of having previously represented the defendant, ethical considerations prohibit the lawyer from representing the witness in this matter.
MRPC 1.9 addresses conflicts that may arise when representing one client in a matter after having previously represented another client in the same matter. However, even assuming that this second case can be considered "the same or a substantially related matter," these conflicts only arise when the interests of the present client are adverse to those of the former client or when the representations of the second client will result in the necessity of using information gained as the result of the first representation to the disadvantage of the former client. Since neither of these circumstances appear to exist under the facts presented, it does not appear that the proposed representation is prohibited on this basis. Further, since MRPC 1.9 is designed for the protection of the former client, any doubts can be resolved by obtaining the consent of the former client after full disclosure of the circumstances, including the lawyer's intended role on behalf of the new client.
Having represented the former client in the factually related matter, it is possible that the lawyer may have personal knowledge that the prospective client is engaging in a course of action that is criminal or fraudulent. If that is the case, the lawyer is required by MRPC 1.2(c) and 1.16(a) to decline the representation. Further, a lawyer may not represent a client if the representation would be materially limited by the lawyer's own interests, MRPC 1.7(b), e.g., if the lawyer's interest in precluding an accusation that the lawyer knew of, or was part of, the witness's inconsistent statements to assist the former client affects the lawyer's ability to represent the witness.
Assuming that the lawyer has no such knowledge or conflict, the lawyer is not ethically prohibited from representing the prospective client.