Is it a conflict of interest for a D.C. lawyer to subpoena or cross-examine a person who is also the lawyer's current or former client?
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This page answers the general question as of 2021. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 380 (published January 2021) works through recurring conflict-of-interest problems that arise when a person who is the lawyer's current or former client is also a witness in another client's litigation. The Committee rejects a per se rule. Disagreeing with a California opinion that treats subpoenaing a current client as an automatic conflict, the Committee agrees with the New York City Bar that issuing a subpoena to a current client (or to a former client in a substantially related matter) "ordinarily, but not always" creates a conflict: a conflict arises only if the client objects, or it is reasonably foreseeable the client will object, to the subpoena or the burden it imposes. A client-witness who wants to be subpoenaed (for example, to obtain a witness fee) presents no conflict.
The opinion maps the analysis onto the D.C. rules. Under Rule 1.7(a), a lawyer jointly representing a litigation party and a witness in the same matter may not subpoena the unwilling witness, and that conflict cannot be cured by consent. Under Rule 1.7(b), where the witness is the lawyer's client in an unrelated matter, conflicts are waivable through informed consent under Rule 1.7(c), provided the lawyer reasonably believes she can give competent and diligent representation to each client; the opinion gives examples including a "punch-pulling" personal conflict under Rule 1.7(b)(4) when the witness is a long-standing, lucrative client. Under Rule 1.9, subpoenaing or cross-examining a former client requires consent only where the matters are the same or substantially related and the interests are materially adverse, and the opinion notes (citing Pinkney v. United States) that credibility-impeachment can make matters substantially related even when their subject matter differs.
On imputation, the opinion concludes that a personal conflict under Rule 1.7(b)(4), including one that exists only because the lawyer alone holds another client's confidences or secrets relevant to the witness, is not imputed to the firm under Rule 1.10, so a screened firm lawyer who lacks that information may handle the matter. The opinion also addresses "thrust-upon" conflicts under Rule 1.7(d) (an unforeseeable witness conflict arising mid-representation may not require withdrawal) and closes with practice suggestions for spotting and resolving witness conflicts, such as adding witness names to conflict checks and discussing advance waivers.
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer who may need to subpoena or cross-examine a person who is also a current or former client should determine whether the client objects (or foreseeably will object) to testifying, since the opinion concludes there is no per se conflict. For a current client in the same matter, the opinion concludes Rule 1.7(a) bars subpoenaing or impeaching the unwilling witness and the conflict cannot be waived; for a current client in an unrelated matter, the opinion concludes a Rule 1.7(b) conflict may be cured by informed consent under Rule 1.7(c) if the lawyer can still provide competent and diligent representation to each client.
For a former client, the opinion concludes the question is whether the matters are the same or substantially related and the interests materially adverse under Rule 1.9, with consent required only then. The opinion concludes a purely personal Rule 1.7(b)(4) conflict (including one based on another client's confidences the lawyer alone knows) is not imputed to the firm, so a properly screened colleague may take the matter. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Is subpoenaing my own client always a conflict?
A: The opinion concludes no. Issuing a subpoena to a current client, or to a former client in a substantially related matter, ordinarily but not always creates a conflict; it does so only if the client objects, or foreseeably would object, to testifying or to the subpoena's burden.
Q: Can I get consent to subpoena or cross-examine a witness who is also my client?
A: The opinion concludes it depends on the rule. A Rule 1.7(a) conflict in the same matter cannot be waived, but a Rule 1.7(b) conflict (client in an unrelated matter) is waivable by informed consent under Rule 1.7(c) if the lawyer can still competently and diligently represent each client.
Q: What about cross-examining or subpoenaing a former client?
A: The opinion concludes there is no conflict unless the current matter is the same as or substantially related to the former representation and the interests are materially adverse; impeaching the former client's credibility can itself make the matters substantially related.
Q: If I personally can't handle the witness, is my whole firm disqualified?
A: The opinion concludes no. A personal conflict under Rule 1.7(b)(4), including one arising because the lawyer alone holds another client's confidences, is not imputed under Rule 1.10, so a screened firm lawyer who lacks that information may handle the matter.
Q: What if a witness conflict appears unexpectedly mid-case?
A: The opinion concludes that under Rule 1.7(d) a conflict that was not reasonably foreseeable at the outset and arises only under Rule 1.7(b)(1) may not require withdrawal, unless it also arises under Rule 1.7(b)(2), (3), or (4).
Background and rules framework
The opinion interprets D.C. Rule 1.7 (current-client conflicts, including the non-waivable same-matter rule in 1.7(a), the waivable conflicts in 1.7(b) with consent under 1.7(c), and thrust-upon conflicts under 1.7(d)), Rule 1.9 (former-client conflicts and the substantial-relationship test), Rule 1.10 (imputation, which the opinion reads not to reach personal 1.7(b)(4) conflicts), and Rule 1.6 (confidences and secrets that can themselves create a personal conflict). It builds on D.C. Opinions 232 and 237 and the D.C. Court of Appeals decision in Pinkney v. United States.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.7(a), (b), (c), (d) / Model Rule 1.7 (current-client conflicts; consent; thrust-upon conflicts)
- D.C. RPC 1.9 / Model Rule 1.9 (former-client conflicts; substantial relationship)
- D.C. RPC 1.10 / Model Rule 1.10 (imputed disqualification)
- D.C. RPC 1.6 / Model Rule 1.6 (confidences and secrets)
Cases:
- Pinkney v. United States, 851 A.2d 479 (D.C. 2004), prior representation substantially related through credibility impeachment
Other opinions cited:
- ABA Formal Op. 92-367: examining a client as an adverse witness
- N.Y.C. Bar Op. 2001-3: subpoenaing a current client ordinarily entails a conflict
- D.C. Bar Legal Ethics Op. 232: multiple clients in criminal matters; Fifth Amendment advice
- D.C. Bar Legal Ethics Op. 237: screening a firm lawyer from a former client's confidences
See also
- ABA Formal Op. 92-367: Examining a Client as an Adverse Witness
- NYC Bar Ethics Op. 2017-6: Subpoenaing a Current Client
- Ohio Ethics Op. 2013-004: Cross-Examining a Former Client
- DC Ethics Op. 381: Responding to a Third-Party Subpoena
- DC Ethics Op. 390: Prior-Work Conflicts and Lawyer as Witness
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-380
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