| LEO Num | Topics | Summary | Date |
ABA-367
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| "The Committee concludes that a lawyer's examining the lawyer's client as an adverse witness, or conducting third party discovery of a client, will ordinarily present a conflict of interest that is disqualifying absent consent of one or both of the clients involved (depending . . . on the nature and degree of the conflict)." A witness would be considered a current client for conflicts purposes "if there is a continuing relationship between lawyer and client, even if the lawyer is not on a retainer, and even if no active matters are being handled." A lawyer in that situation could face a conflict if the lawyer has "specific confidential information relevant to the cross-examination," or even if the lawyer only has general information -- "to the extent a lawyer's general familiarity with how a client's mind works is relevant and useful information, it may also be disqualifying information within the contemplation of Rule 1.8(b), which generally 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." In a situation where the lawyer is called upon to cross-examine a doctor client who is acting as the adversary's expert witness, "there will almost inescapably be a direct adverseness," thus requiring the doctor's consent to handle the cross-examination. "In some instances, a sufficient solution may be to provide for other counsel, also representing the litigation counsel, to deal with the client-witness: where local counsel as well as principal counsel are involved in a litigation, the disqualication applying to one of these will not ordinarily affect the other. In other circumstances, a satisfactory solution may be the retention of another lawyer solely for the purpose of examining the principal lawyer's client." | 10/16/1992 |
1679
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| A criminal defense lawyer who represented one of four co-defendants in a criminal case may not join the firm of a lawyer who represents one of the other co-defendants, unless the client consents, because the two co-defendants are adverse (the first client will testify for the Commonwealth against the lawyer's new client). | 5/16/1996 |
0522
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| A former Assistant Commonwealth's Attorney may not represent a Special Grand Jury when the lawyer's new firm represents two uncooperative material witnesses in the investigation. | 8/1/1983 |
1570
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| A former Assistant Commonwealth's Attorney who was involved in a criminal matter while a public employee may represent the victim against a former witness for the Commonwealth in a later civil action, as long as the Commonwealth's Attorney's office consents and the lawyer's "prior contacts with the victim did not involve the purpose of obtaining professional employment." | 12/14/1993 |
1638
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| A law firm has occasionally represented (and is currently representing) a corporation, gaining "general knowledge of the scope and nature of the corporation's operations." The corporation's president has now been identified as an expert witness for the law firm's adversary in an unrelated matter.Although the firm has not represented the president personally, if "the law firm had any discussions with, or received any information from the president, such communications would give rise to an expectation of confidentiality unless it gave the president the disclosures and warnings required under the circumstances presented in LEO 1457" (since an expectation of confidentiality may arise even without a formal attorney-client relationship). For this reason, the law firm may continue to represent its client only if "it has gained no information from the president under any circumstances that would have indicated an expectation of confidentiality as discussed above, or if no such information thus gained can be of any use whatsoever to the current defendant so that the law firm will not need to use it, or if the president consents after full disclosure, or if the president was adequately warned that what he told the law firm would not be held in confidence because the law firm did not represent him or his interests."The Bar notes that the law firm has had occasion to acquire useful information about the company and the president's credibility, although the Bar only mentions that the firm "has gained general knowledge of the scope and operation of the corporation."The law firm must also obtain the consent of its other client to continue representing it in the unrelated case. [The Bar did not discuss the possibility of arranging for another counsel to cross-examine the expert.] | 4/19/1995 |
1407
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| A law firm represented a doctor in two malpractice cases. The doctor later appeared as an expert witness for plaintiff in a case defended by another of the firm's lawyers. The doctor denied ever having been a defendant in a malpractice action, but the defense lawyer learned from a partner that the firm had earlier represented the doctor on two occasions.The Bar ruled that this information was a "secret" (although it could be obtained from public records) because it was gained in a professional relationship. The Bar therefore prohibited the lawyer's continued representation of the client, because the lawyer could not effectively cross-examine the plaintiff's expert doctor (unless the doctor consented to disclosure of the confidential information). | 3/12/1991 |
1671
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| A lawyer acting as both Commonwealth's Attorney and city attorney obtains an indictment against a builder in a building inspection dispute. One of the lawyer's assistants interviews the building's owner to obtain information for the criminal prosecution. The owner sues the builder and the city's building inspector in a civil lawsuit.The lawyer faces a conflict in prosecuting the builder while advising the building inspector and representing the city's interests in the civil litigation (because the lawyer "likely would have discovered the facts and circumstances surrounding the builder's dealings with the building inspector which would likely be adverse to the defense of the building inspector and the interests of the City"). This conflict was not curable by consent, because it was "not obvious" that the lawyer could play both roles.The lawyer's resignation as City Attorney does not remove the conflict, since the lawyer still owes duty to the former clients (the city and building inspector).One of the lawyer's assistants may continue to represent the city upon becoming full-time City Attorney even though the assistant had interviewed the building's owner in connection with the criminal prosecution of the builder. The interview "did not create an attorney-client relationship nor expectation of confidentiality" and therefore does not bar this lawyer from being adverse to the owner in the civil litigation (the bar noted that "victims of crimes are not clients of prosecutors"). [Rule 1.7(a)(1) follows a subjective "reasonably believes" standard rather than the old Code's objective "obvious" standard.] | 4/1/1996 |
0903
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| A lawyer for an ex-wife may continue to represent her in a child custody matter even if the current wife (who will be a witness in the child custody matter) had asked the lawyer for advice about a child support issue (the lawyer had advised the present wife to see the Juvenile and Domestic Relations Court Intake Officer). The Bar held that the lawyer had not received any confidences in a "professional relationship" and in any event would not be barred from representing a third party (the ex-wife). | 5/1/1987 |
0304
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| A lawyer may defend a corporate client in a criminal matter although the lawyer had previously represented a corporate officer who is a forced witness (after receiving immunity) in the matter, as long as the witness' credibility will not be challenged and both the corporate client and officer-witness consent. | 11/2/1978 |
1181
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| A lawyer may not represent any of three co-defendants when one of the co-defendants has admitted to a more intimate involvement in the crime, because the other two clients may be called as prosecution witnesses and the lawyer would be placed in the "untenable position of having to cross-examine his clients on the same matter as his defense of the same client, in order to exonerate another client." It is doubtful that consent would cure this problem. | 12/14/1988 |
0307
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| A lawyer may not represent two criminal co-defendants when there is a dispute between them about their roles in the alleged crime. The lawyer may not represent either defendant if the other is to be a witness in the criminal action. | 1/17/1979 |
0891
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| A lawyer may represent a client although a secretary in lawyer's firm will testify against the client, as long as the client consents. | 4/1/1987 |
0250
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| A lawyer may represent a group of policemen in salary discussions with a city while at the same time maintaining a criminal practice in which some of the individual policemen would be witnesses, as long as the policemen and the criminal defendants consent after full disclosure. | 5/21/1974 |
0916
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| A lawyer may represent an alleged criminal and (in unrelated matters), the alleged criminals' victim and a witness against the criminal as long as all clients consent. | 5/8/1987 |
1736
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| A lawyer may threaten to seek "appropriate legal action" against a nonparty witness for defamation of the lawyer's client if the lawyer has a "well-founded belief that the threatened legal action is warranted," but may not engage in such a tactic if the "threatened legal action is without legal basis in law or fact, and the threatened suit is made merely to harass and intimidate the witness, or influence the witness not to come forward with truthful and relevant information." | 10/20/1999 |
0822
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| A lawyer represented a client in a divorce action, and learned substantial facts about the client's close friend and associate. After the divorce case was over, the friend's former wife asked the lawyer to represent her in a spousal support case. The lawyer may do so as long as the lawyer does not use confidential information gained from the client in the first representation. [The Bar did not indicate whether confidential information about the client's "close friend and associate" would be considered such a protected confidence.] | 10/9/1986 |
1349
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| A lawyer represented an ex-husband in child-support matters. After that representation, the lawyer was hired by another client (in a divorce action), who was living with the ex-husband's former wife. After that representation ended, the ex-husband again hired the lawyer for child-support matters. The Bar concluded that the representation of the ex-husband and the prior representation of the other client in the divorce matter were unrelated, but that the lawyer could represent the ex-husband only if the lawyer had not gained any confidences about the former wife while representing the other client then living with the former wife. | 4/20/1990 |
1623
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| A lawyer representing a client in an eviction case discovers that the lawyer is representing another client (on an unrelated matter) who could be an adverse witness in the eviction matter. Because it is "not obvious" that the lawyer can adequately represent both clients (the lawyer must challenge the credibility of one client in representing the other client), the lawyer should withdraw from representing the eviction client. Once the lawyer drops the eviction client, the lawyer may continue to represent the other client in the unrelated matter. [The Bar's conclusion that consent would not cure this conflict might be different under Rule 1.7(a)'s "reasonably believes" subjective standard rather than the old Code's "obvious" standard] [There may be limits on a lawyer's ability to withdraw from a current representation to avoid a conflict created by multiple representations.] | 2/17/1995 |
0749
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| A lawyer representing the defendant in a divorce case may also represent witnesses subpoenaed by the plaintiff to support an adultery claim for purposes of advising the witnesses to plead the Fifth Amendment. | 1/17/1986 |
1457
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| A lawyer represents a condominium board. During the deposition preparation of one board member (the board's former president), the lawyer learns that the president exceeded the president's authority and contributed to the injury of which plaintiff complains. The lawyer must advise the former president to seek independent counsel. The lawyer may not continue to prepare the former president for the deposition because the former president and the condominium board have conflicting interests which cannot be cured by consent. The lawyer may not tell the condominium board what the former president has told the lawyer, unless the lawyer had earlier advised the former president that the lawyer represented the condominium board and not the president, and that any information divulged during the deposition preparation would be shared with the board. Although the lawyer had no attorney-client relationship with the former president, absent such disclaimer the meeting "created an expectation of confidentiality which must be protected by the attorney." The opinion seems to indicate that the lawyer may also find it nearly impossible to continue representing the condominium board, because the lawyer cannot both represent the condominium board and protect the confidences of the former president. [Rule 1.13 provides guidance for lawyers who represent organizations and face this situation. The litigation in this opinion was pending in D.C. so under Rule 8.5 the D.C. court's ethics rules would now govern this situation.] | 4/13/1992 |
1427
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| A lawyer represents two clients in a real estate matter. One of the clients is indicted on criminal charges, and wants to retain the lawyer on that matter. The other client is an alleged co-conspirator. The lawyer may not represent the criminal defendant if the criminal matter is related to the real estate matter. | 9/16/1991 |
0998
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| A lawyer who formerly represented a criminal defendant cannot represent another defendant against whom the former client will be a witness, unless the first client consents. The interest of the two clients are adverse, and the lawyer formerly represented the witness on a substantially related matter. | 12/9/1987 |
0696
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| A part-time Assistant Commonwealth's Attorney may not continue representing a client in a civil matter after criminal charges are brought, even if the lawyer is not involved in the criminal prosecution. The lawyer's spouse and law partners are also disqualified. The part-time Assistant Commonwealth's Attorney or that lawyer's spouse or law partner may represent a civil client as long as there are no proceedings or investigations pending. | 5/10/1985 |
1507
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| A public defender was appointed to represent a criminal defendant, but the public defender's office was currently representing or formerly represented a number of witnesses. The Bar held that "continued representation of a new client is improper when it becomes necessary to challenge the credibility of a former client, even in an unrelated matter, if it requires the use of the former client's confidential information in order to zealously represent the current client." Because the public defender was apparently representing one of the current adverse witnesses, the continued representation of the defendant required the consent of the defendant and the witness. The Commonwealth's Attorney had discussed the case with the witnesses. The Bar held that the Commonwealth's Attorney may not approach a present client of defense counsel without notifying defense counsel, and may not provide any legal advice (such as recommending signing a waiver) to any unrepresented former client.The public defender may continue to represent the defendant even if it became necessary to call one of the same office's former lawyers as a witness because DR 5-102(A) applies only when the lawyer-witness is presently associated with the firm. | 3/1/1993 |
1453
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| A university pre-paid student legal service office represents students in criminal matters only if the complaining witness or victim is a student and consents to the representation. The ethics rules permit contact with the student (who will be a witness and not a party to the criminal proceeding) and also permits making the representation of the student-defendant contingent on the witness' consent. Although no attorney-client relationship arises from the initial consultation between the office and the student-defendant, the meeting "created an expectation of confidentiality" that the lawyer must respect. | 3/24/1992 |
1559
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| Although there is no attorney-client relationship between the lawyer for an infant and the infant's mother (acting as "next friend" in a personal injury action), the lawyer may not represent the infant in an action against his mother without the mother's consent, because "while discussing the infant's case, the mother may have divulged confidential or secret information which may present an advantage to [the lawyer's] representation of the infant and a disadvantage to the mother as a party defendant." | 10/20/1993 |
1310
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| An insurance company hired a lawyer to represent an employer sued for an accident involving an employee and a phantom driver. The court found the employee negligent. Two years later, the employee sued the phantom driver. The insurer hired the same lawyer to defend the uninsured motorist case. Because the lawyer did not formerly represent the employee (who was merely a witness) and did not gain any confidential information from the witness, the lawyer could defend the case. | 11/16/1990 |
0593
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| As long as both clients consent, a lawyer may represent both a plaintiff against a defendant and an important witness who has been sued by the defendant. A lawyer may continue the representation even if the lawyer is called as a witness by the opposing party, unless it becomes apparent that the lawyer's testimony "is or may be" prejudicial to the clients. | 6/18/1984 |
1415
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| Because a Commonwealth's Attorney does not represent a victim/ witness, the lawyer may rely on the testimony of the victim/ witness in one prosecution and prosecute the victim/witness in a related prosecution (although the Commonwealth's Attorney may communicate directly with the victim/witness only with counsel's consent if the victim/witness is represented). | 6/13/1991 |
1009
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| If the defendant consents, a lawyer may represent a criminal defendant even if a witness against the defendant is the lawyer's former client (on an unrelated matter) and the lawyer and the witness had a short conversation about the criminal matter (during which the lawyer did not gain any confidential information that could be used to his client's advantage or the witness's disadvantage). | 12/9/1987 |
1741
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| Prosecutors may inform witnesses that they may be contacted by private investigators hired by the defense and explain "that they have the right to speak or not to speak with an investigator working for the defense" (although the prosecutor should not make any additional comments or criticize the investigators' tactics). | 4/13/2000 |
1046
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| The chief complaining witness in a criminal matter is represented by the former firm of the Commonwealth's Attorney. The Commonwealth's Attorney may continue to prosecute the defendant if the Commonwealth's Attorney was not involved in representing the witness and had not acquired any confidential information from the witness. | 3/1/1988 |
1146
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| Unless the victim consents, a lawyer must withdraw as counsel for a defendant in an attempted murder case if the lawyer acquired confidences during an earlier interview with the victim (who was seeking legal help at the time). | 10/6/1988 |
1493
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| While working for the government, a lawyer used an expert. The expert has now appeared adverse to the lawyer's current client. The lawyer could reveal "his impressions about the expert witness's strengths, weaknesses, or work habits" because the matters were unrelated and because such "subjective assessments" did not constitute a secret of the lawyer's former client. | 10/19/1992 |