Can a lawyer represent a non-party deposition witness mid-deposition while already representing a party in the same matter?

Plain-English summary

The Committee addressed a scenario it describes as not infrequent: a lawyer attending a third-party witness's deposition on behalf of a client confers with the witness during a break, then announces that the lawyer now also represents the witness, instructing the witness not to answer certain questions and recessing to consult. The question is whether that mid-deposition representation is permissible under the Rules of Professional Conduct.

The opinion does not impose a flat prohibition. Instead it concludes that agreeing to represent a witness mid-deposition while representing a party "raises any number of serious ethical issues," and it walks through each applicable rule. On scope (Rule 1.2), the lawyer and witness must agree on the objectives and any limitation, and the opinion notes that other jurisdictions doubt a witness can be adequately represented on a strictly "limited" basis. On fees (Rule 1.5), the lawyer must address who pays and disclose potential adverse fee exposure. On confidentiality (Rules 1.6 and 1.8), the lawyer must analyze whether this is a separate or joint representation and obtain consent to the resulting information-sharing and loss of privilege between jointly represented clients.

On conflicts (Rules 1.7 through 1.11), the lawyer must identify the clients, determine whether a conflict exists, decide whether it is waivable, and if so obtain each affected client's informed consent confirmed in writing. The opinion warns that even an initially non-apparent conflict can emerge later and may force the lawyer to withdraw from representing all clients, and notes a disqualified lawyer may be barred from collecting a fee from either side. It also flags Rule 4.3 (the witness may be an unrepresented person and the lawyer may not imply disinterest), Rule 1.13(f) (identifying the client when an organization's interests diverge from a constituent's), and Rule 7.3 (the risk of improper in-person solicitation in a pressured setting). The Committee's bottom line is to counsel "prudence and deliberation" before undertaking the representation.

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer who is asked to represent a non-party witness during a deposition in a matter where the lawyer already represents a party must, before agreeing, clarify the scope of the new representation, address fees and who pays them, analyze whether the engagement is separate or joint and resolve the confidentiality and privilege consequences, and run the full conflicts analysis (identify clients, determine and characterize any conflict, and obtain informed consent confirmed in writing from both the witness and the existing client). The opinion presents these as the considerations the rules require, not as optional precautions, and frames the overall posture as one calling for caution given the time pressure of an active deposition.

Common questions

Q: Is it flatly prohibited to take on a deposition witness as a client mid-deposition?

A: No. The opinion does not impose a categorical bar, but it concludes the situation "raises any number of serious ethical issues" and counsels prudence and deliberation before agreeing.

Q: What conflicts analysis does the lawyer have to run first?

A: Per the opinion, the lawyer must identify the client or clients, determine whether a conflict exists, decide whether any conflict is waivable, and if so obtain each affected client's informed consent confirmed in writing under Rule 1.7.

Q: What happens if a conflict surfaces after the deposition?

A: The opinion warns that the lawyer may be forced to withdraw from representing all of the clients, and notes that a lawyer disqualified on conflict grounds is generally barred from collecting a fee from either side.

Q: Does it matter if the witness is an employee of the lawyer's corporate client?

A: Yes. The opinion applies Rule 1.13(f), under which the lawyer must explain the client's identity when the organization's interests are adverse to the constituent's, and analyze whether representing the employee is separate or joint with the corporation.

Background and rules framework

The opinion canvasses a broad set of Alaska Rules of Professional Conduct: 1.2 (scope, the analog of Model Rule 1.2), 1.5 (fees), 1.6 and 1.8 (confidentiality), 1.7 through 1.11 (conflicts and imputation, tracking Model Rule 1.7), 1.13 (organization as client), 4.3 (unrepresented persons), and 7.3 (solicitation). It draws on the NYC Bar Association's analysis of the same fact pattern in resolving whether a witness can be represented on a "limited" basis.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.2 (scope of representation), 1.5 (fees)
• Alaska RPC 1.6, 1.8(b), 1.8(f) (confidentiality; third-party payment)
• Alaska RPC 1.7, 1.9, 1.10, 1.11 (conflicts and imputation)
• Alaska RPC 1.13(f) (organization as client), 4.3 (unrepresented persons), 7.3 (solicitation)

Cases:

• Moses v. McGarvey, 614 P.2d 1363 (Alaska 1980), disqualified lawyer barred from a fee from either opposed interest

Other opinions cited:

• NYC Bar Formal Opinion 2016-2: representing a non-party deposition witness where the attorney also represents a named party

See also

• NYC Bar Ethics Op. 2016-2: Representing a Non-Party Deposition Witness
• ABA Formal Op. 05-436: Informed Consent to Future Conflicts

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2020-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ETHICS OPINION 2020-01
Representing a Non-Party Witness at a Deposition in a
Matter Where the Lawyer Also Represents a Named Party

FACTS: A lawyer is representing a client at the deposition of a third-party
witness. During a break in the deposition, the lawyer and witness confer. When
the deposition resumes the lawyer announces that the lawyer is now
representing the witness. As the deposition proceeds, the lawyer instructs the
witness not to answer certain questions and at different points recesses the
deposition to consult with the witness.
The Committee is told that this scenario is not infrequent in litigation, and
has been asked whether it is permissible under the Rules of Professional
Conduct.
RULES: ARPC 1.2, 1.5, 1.6, 1.7, 1.8(f), 1.9, 1.10, 1.11, 1.13, 4.3, 7.3
SUMMARY: Agreeing to represent a witness mid-deposition when
representing one of the parties to the matter raises serious ethical issues. Before
undertaking such a representation, a lawyer must carefully consider the issues,
disclose potential conflicts, and obtain informed consent from both the
prospective client and from the lawyer’s existing client. Caution and prudence
are in order, as many ethical issues are implicated in this situation.1
OPINION: The factors that apply to any representation of multiple clients
in the same matter apply to this situation. These considerations may not be
ignored simply because of time pressures in the deposition setting. We review
the applicable ARPCs below.
ARPC 1.2 – Scope of Representation. The first issue is scope of
representation. The lawyer and the client must agree on “the objectives of
representation” and “the means by which they are to be pursued.” ARPC 1.2(a).
If limited, the scope must be reasonable under the circumstances and the client
must give informed consent (“consent after consultation”). ARPC 1.2(c).

These ethical concerns are present in many situations involving actual or
potential multiple representation.
For example, a lawyer representing a
corporation may be asked to attend a deposition of a company employee. The
employee may see the lawyer as “their” lawyer and rely upon the lawyer for advice
and guidance before and during the deposition. A lawyer facing this or another
multiple representation situation should consider the ethical issues identified in
this opinion and address those issues, in advance, with all concerned.
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Questions to consider include whether the representation is limited to
representing the witness during the deposition, or is it concerning any issue that
may arise relating to the matter, or perhaps even a broader scope? Does the
witness understand what the limitations are and how they affect the witness’s
interest? In this circumstance, given the on-the-fly creation of an attorneyclient relationship, clarity and understanding on the scope of representation are
critical.
Ethics opinions from other jurisdictions express skepticism that a person
can be adequately represented at a deposition on a “limited representation”
basis.2

The New York City Bar Association, for example, concluded that it is doubtful
that a lawyer could ever adequately represent a deposition witness on a “limited”
basis:
2

Although there is no such thing as a “one-size-fits-all”
representation, representing a non-party witness for the
purposes of a deposition may involve the following activities:
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Reviewing relevant documents, testimony and other materials
in order to understand the issues in the case and the potential
relevance of the witness’s testimony;
If the witness is also subpoenaed to produce documents,
assisting the witness in identifying, collecting, reviewing and
producing documents in response to the subpoena;
Meeting with the witness in advance of the deposition to
prepare for the testimony;
Evaluating whether the potential testimony may expose the
witness to criminal or civil liability, and providing advice on
how to minimize such liability (or, if the potential liability
implicates an area of practice that is outside the attorney’s
expertise, advising her to retain competent counsel);
Evaluating what impact the witness’s potential testimony may
have on the case generally;
Attending the deposition and interposing appropriate
objections and offering appropriate guidance to the witness
concerning the testimony;
Ensuring that the deposition transcript is transmitted to the
witness, assisting as needed with filling out an errata sheet,
securing the witness’s signature on the transcript, and
delivering the signed transcript to opposing counsel;
Following up, as needed, with additional requests for
information or documents from the witness; [and]
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ARPC 1.5 – Fees. The lawyer and client must agree on fees. ARPC 1.5.
If fees are expected to exceed $1,000, a written fee agreement must be entered
“before or within a reasonable time after commencing the representation.” ARPC
1.5(b). The rules require disclosure of any potential assessment of an adverse
party’s “costs, fees, or expenses if the client is not the prevailing party.” ARPC
1.5(b).
Additionally, if the representation is limited under ARPC 1.2 and a written
agreement is required under ARPC 1.5, “the agreement shall describe the
limitation on the representation.” ARPC 1.2(c)(2).
The questions to consider in this situation include whether fees will be
charged for the representation, who is paying those fees and, if the lawyer’s
existing client is paying for the lawyer’s services, whether both clients agreed to
the arrangement.3 The question of potential liabilities must also be considered
and disclosed. While seemingly remote in this situation, an adverse fee award is
within the realm of possibility: for example, if the lawyer instructs the witness
not to answer a question and an order to compel and award fees is entered by
the court.
ARPC 1.6 and 1.8 – Confidentiality of Information. In the usual
representation, a lawyer “shall not reveal a client’s confidence or secret unless
the client gives informed consent,” except for disclosures that (1) are impliedly
authorized in order to carry out the representation, ARPC 1.6(a), and (2) are
permitted in certain very limited circumstances. ARPC 1.6 (b). “Use of

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Answering any questions the witness has concerning the
testimony and its implications for the witness or for the case
generally.

NYC Bar Ethics Committee Formal Opinion 2016-2: “Representing a Non-Party
Witness at a Deposition in a Proceeding Where the Attorney Also Represents a
Named Party.” https://www.nycbar.org/member-and-careerservices/committees/reports-listing/reports/detail/formal-opinion-2016-2representing-a-non-party-witness-at-a-deposition-in-a-proceeding-where-theattorney-also-represents-a-named-party
See ARPC 1.7 Cmt (“Interest of Person Paying for a Lawyer’s Services”) (“A
lawyer may be paid from a source other than the client, including a co-client, if
the client is informed of that fact and consents and the arrangement does not
compromise the lawyer’s duty of loyalty or independent judgment to the client.”)
and see ARPC 1.8(f) (“A lawyer shall not accept compensation for representing a
client from one other than the client unless: (1) the client gives informed consent;
(2) there is no interference with the lawyer’s independence of professional
judgment or with the lawyer-client relationship; and (3) information relating to a
client’s confidences or secrets are protected as required by Rule 1.6.”).
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confidences and secrets to the disadvantage of the client violates the lawyer’s
duty of loyalty.” ARPC 1.8(b) Cmt.
When there is joint representation of two or more clients, “impliedly
authorized” disclosures encompass confidential information material to the joint
representation. The prospective jointly represented clients need to be informed
and consent to the exchange of otherwise confidential information with each
other and the concomitant waiver of confidentiality between them. “With regard
to the attorney-client privilege, the prevailing rule is that, as between commonly
represented clients, the privilege does not attach. Hence, it must be assumed
that if litigation eventuates between the clients, the privilege will not protect any
such communications, and the clients should be so advised.” ARPC 1.7, Cmts.
In the situation presented, the lawyer must analyze whether
representation of the witness is a separate representation or a joint
representation with the lawyer’s other client and seek consent accordingly. For
example, if the lawyer is representing a corporation and one of its employees is
the witness, will the lawyer’s representation of the witness be a stand-alone
representation or is it part of a joint representation with the corporation? If joint,
and the witness confides something to the lawyer that could jeopardize the
witness’s employment, but which is also material and helpful to the corporation’s
defense, the lawyer may be obligated to disclose that information to the
corporation—and vice versa. The lawyer must carefully explain these issues and
obtain informed consent from both the witness and the existing client before
agreeing to represent the witness.
ARPC 1.7, 1.8, 1.9, 1.10, 1.11 – Conflict of Interest. The general rule
on conflict is that “a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest.”
ARPC 1.7(a).
“Loyalty and
independent judgment are essential elements in the lawyer’s relationship to a
client.
Concurrent conflicts of interest can arise from the lawyer’s
responsibilities to another client, a former client, or a third person or from the
lawyer’s own interests.” ARPC 1.7 Cmt. Specific conflict rules apply in certain
circumstances.4
In the situation described, the obvious initial inquiry is whether there is a
conflict of interest between the lawyer’s existing client and the witness. There
may be no conflict; there may be a waivable conflict; or there may be an
unwaivable conflict. See, ARPC 1.7(a) and (b). Other conflicts, with other clients
or the lawyer’s own interests, may also exist. In the situation presented,
regardless of the time pressures inherent in an ongoing deposition, the lawyer is

4 See APRC 1.8 (Conflict of Interest: Current Specific Rules); ARPC 1.9 (Duties to

Former Clients); ARPC 1.10 (Imputation of Conflicts of Interest: General Rule);
and ARPC 1.11 (Special Conflicts of Interests for Former and Current
Government Officers and Employees).
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required to assure that there are no conflicts that would prevent the
representation. The lawyer must:
1) clearly identify the client or clients; 2) determine whether a
conflict of interest exists; 3) decide whether the representation
may be undertaken despite the existence of a conflict, i.e.,
whether the conflict is waivable; and 4) if so, consult with the
clients affected … and obtain their informed consent,
confirmed in writing.
ARPC 1.7 Cmt.
It is also important to recognize and disclose that “[o]rdinarily, the lawyer
will be forced to withdraw from representing all of the clients if the common
representation fails.” ARPC 1.7 Cmt. Representation of the witness may be
tactically advantageous at the moment, but if conflicts emerge after the
deposition, the lawyer may be disqualified from representing either party as the
matter proceeds. And, as the Alaska Supreme Court has noted, “It is well
established that an attorney, disqualified on conflict-of-interest grounds,
generally is barred as a matter of public policy from receiving any fee from either
of the opposed interests.”5
Conflict of interest is a significant issue in this scenario. Great caution is
in order. Disclosure to, and informed consent by, both clients is critical.
Moreover, even if a conflict is not apparent at the outset of the representation, a
conflict can arise later. The lawyer must be aware, attentive and responsive to
developing conflicts.
ARPC 4.3 and 1.13 – Dealing with Unrepresented Persons and
Organization as a Client. While perhaps not the classic situation, in the
scenario presented the witness is an “unrepresented person.” Whether the
lawyer is proposing representation or is responding to the witness’s request for
representation mid-deposition, the “lawyer shall not state or imply that the
lawyer is disinterested.” ARPC 4.3.
In particular, and related to the conflict issues discussed above, when
dealing with an organization’s employee or other “constituent,” a lawyer is
obligated to “explain the identity of the client when the lawyer knows or
reasonably should know that the organization’s interests are adverse to those of
the constituents with whom the lawyer is dealing.” ARPC 1.13(f).
ARPC 7.3 – Solicitation of Clients. This rule may not be a major issue
in the situation presented. Nonetheless, it is worth keeping in mind that a lawyer
“shall not by in-person, live telephone, or real-time electronic contact solicit
professional employment when a significant motive for the lawyer’s doing so is
the lawyer’s pecuniary gain…” ARPC 7.3(a).
5 Moses v. McGarvey, 614 P.2d 1363, 1372 (Alaska 1980).

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The concern is that the prospective client “may already feel overwhelmed
by the circumstances giving rise to the need for legal services, may find it difficult
to fully evaluate all available alternatives with reasoned judgment and
appropriate self-interest in the face of the lawyer’s presence and insistence upon
being retained immediately. The situation is fraught with the possibility of
undue influence, intimidation, and over-reaching.” ARPC 7.3 Cmt. That concern
could easily be an issue during a heated deposition, where the witness is the
subject of aggressive or hostile questioning by the opposing party’s lawyer.
Conclusion. As the above list indicates, agreeing to represent a witness
mid-deposition when representing one of the parties to the matter raises any
number of serious ethical issues. The Committee counsels prudence and
deliberation before a lawyer agrees to undertake representation in the situation
presented.

Approved by the Alaska Bar Association Ethics Committee on January 2, 2020.
Adopted by the Board of Governors on January 30, 2020.

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