August 16, 1994
A lawyer may not undertake or continue representation which requires cross-examination of one of the lawyer's own clients as an adverse witness on behalf of another client.
References: MRPC 1.3, 1.7(a) and (b); RI-21, RI-26, RI-136; ABA Op 92-367; Committee on Legal Ethics v Frame, 433 SE2d 579 (WVa 1993).
During a deposition in an employment discrimination matter, a lawyer discovers that an investigator in the case against the lawyer's client is also a client of the lawyer in an unrelated matter. Although the lawyer believes the investigator might not have had all pertinent facts when reporting on the investigation, the lawyer asks whether the possibility that the lawyer would be diligently cross-examining the investigator creates an impermissible conflict of interest.
MRPC 1.7 states:
"(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
"(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
"(2) each client consents after consultation.
"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyers responsibilities to another client or to a third person, or by the lawyers own interests unless:
"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."
ABA Model Rule of Professional Conduct 1.7 is identical to MRPC 1.7. In this connection, ABA Op 92-367 appears to be directly on point which states:
"The Committee believes that as a general matter examining one's own client as an adverse witness on behalf of another client, or conducting third party discovery of one client on behalf of another client, is likely (1) to pit the duty of loyalty to each client against the duty of loyalty to the other; (2) to risk breaching the duty of confidentiality to the client-witness; and (3) to present a tension between the lawyer's own pecuniary interest in continued employment by the client-witness and the lawyer's ability to effectively represent the litigation client. The first two of these hazards are likely to present a direct adverseness of interest falling within Rule 1.7(a); all three may constitute material limitations on the lawyer's representation, so as to come under Rule 1.7(b)."
The ABA Committee reasoned that a lawyer's duties to the witness as a client in the unrelated matter may result in the lawyer conducting a soft, deferential, cross-examination rather than a diligent and vigorous one, triggering MRPC 1.3 and 1.7(a). Confidences and secrets may also be impacted. The lawyer's knowledge of the motivations or thinking processes of the witness, gained in the client-lawyer relationship, is relevant and useful information in planning the cross-examination. Since MRPC 1.8(b) prohibits a lawyer from using information relating to the representation of a client to the disadvantage of the client unless the client consents after consultation, the lawyer's failure to use the information would also result in a less than diligent representation of the client. See also, MRPC 1.6. Finally, the lawyer's personal interest in a continuing relationship from the client-witness may trigger MRPC 1.7(b).
A key question in Committee On Legal Ethics v Frame, 433 SE2d 579 (WVa 1993), was whether cross examining a client on a matter unrelated to the client's representation would be "directly adverse" under ethics rule 1.7(a). The court stated:
"The Respondents also appear to place great emphasis on the fact that no deleterious impact was actually created by the simultaneous representation. That begs the question. To establish an ethical violation under Rule 1.7(a), one does not have to prove prejudicial impact, negative result, or an exchange of confidential information. The only prerequisites for the establishment of an ethical violation are those clearly set forth in the rule itself; namely, representation of one client that is 'directly adverse' to another client without the consent of each client. The 'directly adverse' language does not imply that a bad result must occur before representation is impermissible. It is the interests of the clients with which the rule is concerned, not the result obtained."
Whether the fact situation is interpreted as presenting a direct adverse conflict of interest contemplated by MRPC 1.7(a) or a material limitation of the lawyer's representation contemplated by MRPC 1.7(b), the lawyer may not undertake or continue in the representation unless a disinterested lawyer would reasonably believe the representation would not be adversely affected and both clients consent.
In RI-26 a lawyer was not disqualified from handling a will contest when the lawyer's legal assistant was a witness, if the witness testified consistently with the interests of the lawyer's client. In RI-21, a lawyer was prohibited from testifying as a expert witness adverse to the interests of a client of the lawyer's firm. In RI-136, a law firm was not prohibited from defending a corporation in a wrongful termination case when a firm member who was also a director and former secretary of the corporation was to be called as a witness, if the testimony of the lawyer/witness is consistent with the interests of the corporation.
For the reasons stated in ABA Op 92-357, if the testimony of the client-witness is adverse to the interests of the lawyer's other client, a disinterested lawyer could not reasonably believe the representation would not be adversely affected and the lawyer is disqualified pursuant to MRPC 1.7(a)(1) and 1.7(b)(1). If the testimony of the client-witness is not adverse to the interests of the lawyer's other client, the lawyer could seek consent for the continued representation from both clients pursuant to MRPC 1.7(a)(2) and 1.7(b)(2).