If one of my clients will be an adverse witness in a case I'm handling for a different client, can I cross-examine or take discovery from my own client?

Plain-English summary

The committee was asked whether a lawyer who has a doctor as a general client may cross-examine that doctor when the doctor testifies as an adverse expert witness in a medical malpractice case the lawyer is handling for a different client. The committee answered the broader question, assuming throughout that the litigation in which the client-witness's evidence is sought is not itself adverse to that client. It concluded that examining one's own client as an adverse witness, or conducting third-party discovery of a client, ordinarily presents a disqualifying conflict absent consent, and that any disqualification is imputed to the firm under Rule 1.10.

The committee identified three hazards: such conduct 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 hazards are likely to create direct adverseness under Rule 1.7(a); all three may constitute material limitations under Rule 1.7(b). The committee noted that a continuing lawyer-client relationship (even without a retainer or active matters) generally triggers the stricter current-client rule (Rule 1.7) rather than the former-client rule (Rule 1.9).

The committee held that the degree of adverseness, and thus whether paragraph (a) or (b) of Rule 1.7 (or neither) applies, depends on the particular circumstances. On the facts presented (cross-examination of a doctor-client as an adversary's expert), it found "there will almost inescapably be a direct adverseness, under Rule 1.7(a)," so the lawyer may proceed only with the consent of both clients. Where the conflict is merely a material limitation on the litigation representation under Rule 1.7(b), it is curable with the consent of the litigation client alone, provided the lawyer reasonably believes that representation will not be adversely affected. A conflict arising only from the lawyer's own interest in continued business from the client-witness implicates only Rule 1.7(b), because Rule 1.7(a) does not recognize adverseness to the lawyer's own interests.

Currency note

This opinion was issued in 1992, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which replaced "consent after consultation" with "informed consent, confirmed in writing" and restructured Rule 1.7 into its current "concurrent conflict of interest" framework. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can I cross-examine my own client when she is the other side's expert witness?

A: The opinion held that on those facts there will "almost inescapably" be direct adverseness under Rule 1.7(a), so the lawyer may proceed only with the consent of both the client-witness and the litigation client.

Q: Is the lawyer's whole firm disqualified, or just the individual lawyer?

A: The opinion held that, absent consent, the individual lawyer's disqualification "will be imputed to all other lawyers in the lawyer's firm as well," under Rule 1.10.

Q: Does it matter that the witness is only a past or occasional client, not on retainer?

A: Yes. The committee noted that a continuing relationship (even without a retainer or active matters) is likely to invoke the stricter current-client conflict rule (Rule 1.7) rather than the more permissive former-client rule (Rule 1.9).

Q: When can the conflict be cured with only the litigation client's consent?

A: When the conflict is a material limitation under Rule 1.7(b) rather than direct adverseness under Rule 1.7(a), for example a conflict rooted only in the lawyer's own interest in continued business from the client-witness, the litigation client's consent alone may suffice if the lawyer reasonably believes the representation will not be adversely affected.

Background and rules framework

The opinion interpreted Rule 1.7, distinguishing its directly-adverse branch (1.7(a)), which requires both clients' consent, from its material-limitation branch (1.7(b)), which requires only the affected client's consent. It applied Rule 1.10 to impute the disqualification across the firm, Rule 1.6 to the confidentiality owed the client-witness, and Rule 1.8(b)'s bar on using a client's information to the client's disadvantage. The committee also canvassed the predecessor Model Code provisions (DR 5-105, Canons 4, 5, and 7). Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest; current clients; (a) directly adverse, (b) material limitation)
• MR 1.10 (imputation of conflicts of interest)
• MR 1.6 (confidentiality of information)
• MR 1.8 (current clients; (b) use of information to client's disadvantage)

Cases:

• Estates Theatres v. Columbia Pictures Industries, 345 F. Supp. 93 (S.D.N.Y. 1972), lawyer must not be tempted to "soft pedal" zeal for one client to avoid clashing with another
• IBM Corp. v. Levin, 579 F.2d 271 (3d Cir. 1978), pattern of repeated retainers supports a continuous relationship for conflicts purposes
• United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), hesitancy to fully cross-examine a current client creates a real conflict

See also

• ABA Formal Op. 93-378: Ex parte contacts with expert witnesses
• ABA Formal Op. 92-365: Trade associations as clients

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 92-367.pdf