Can a lawyer represent a non-party deposition witness in the same case where the lawyer already represents a party?
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This page answers the general question as of 2016. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses whether a lawyer who represents a named party in a proceeding may also represent a non-party witness at a deposition in that same proceeding. The committee concludes the representation is ethically permitted, but identifies four constraints.
First, limited scope: representing the witness only for the deposition may be a limited-scope representation under Rule 1.2(c). If so, the limitation must be reasonable under the circumstances and the lawyer must secure the witness-client's informed consent. The committee notes there is no bright-line rule for reasonableness and that some otherwise useful services may reasonably be excluded from a deposition-witness representation.
Second, conflicts: the lawyer must evaluate whether representing the witness-client creates a conflict of interest with the party-client under Rule 1.7. If a conflict exists, the lawyer must determine whether it is waivable and, if so, obtain written conflict waivers before proceeding, and must continue to monitor the representation so that appropriate steps are taken if a conflict develops later in the proceeding. Third, joint-client disclosure: the lawyer must explain that both clients in a joint representation are entitled to information material to the representation, so if one joint client discloses material confidential information, the lawyer is obligated to share it with the other client unless an exception applies or the clients agree to a different arrangement. Fourth, solicitation: when communicating with the deposition witness about the prospective representation, the lawyer must comply with the ethical rules governing solicitation of clients (Rule 7.3) and, where relevant, the rules on dealing with unrepresented persons (Rule 4.3) and on lawyers paid by someone other than the client (Rule 1.8(f)).
In practice
Under this opinion, conduct in which a lawyer for a party also represents a non-party deposition witness is permitted, as the rules stood at the time, when the lawyer satisfies four conditions. The opinion holds that the witness engagement may be a reasonable limited-scope representation under Rule 1.2(c) with informed consent; that any Rule 1.7 conflict with the party-client must be analyzed and, if waivable, addressed with written waivers and ongoing monitoring; that joint-client information-sharing duties apply so material confidences cannot be siloed absent an exception or the clients' agreement; and that the lawyer's outreach to the witness is subject to the solicitation rules.
Common questions
Q: Can I appear for a non-party witness at a deposition while I represent a party in the case?
A: Yes, the opinion concludes the representation is permitted, subject to limited-scope, conflict, joint-client disclosure, and solicitation limits.
Q: Do I need a conflict waiver?
A: If representing the witness creates a Rule 1.7 conflict with your party-client, the opinion says you must determine whether it is waivable and, if so, obtain written waivers before proceeding, and keep monitoring for conflicts that arise later.
Q: What if the witness tells me something material that affects my party-client?
A: The opinion holds that in a joint representation both clients are entitled to material information, so the lawyer must share material confidential information with the other client unless an exception applies or the clients have agreed otherwise.
Q: Are there limits on how I approach the witness about representing them?
A: Yes. The opinion holds the lawyer must comply with the solicitation rules (Rule 7.3) when communicating with the witness about the prospective representation.
Background and rules framework
The opinion interprets New York Rule of Professional Conduct 1.2(c) (limiting the scope of representation; Model Rule 1.2(c)), Rule 1.7 (concurrent conflicts; Model Rule 1.7), Rule 1.6 (confidentiality; Model Rule 1.6), Rule 1.8(f) (compensation from a third party; Model Rule 1.8(f)), Rule 1.13 (organization as client; Model Rule 1.13), Rule 4.3 (dealing with unrepresented persons; Model Rule 4.3), and Rule 7.3 (solicitation; Model Rule 7.3).
Citations and references
Rules of Professional Conduct:
- Model Rule 1.2(c) / NY RPC 1.2(c) (limited-scope representation)
- Model Rule 1.7 / NY RPC 1.7 (concurrent conflicts of interest)
- Model Rule 1.6 / NY RPC 1.6 (confidentiality; joint-client information sharing)
- Model Rule 1.8(f) / NY RPC 1.8(f) (compensation from a third party)
- Model Rule 4.3, 7.3 / NY RPC 4.3, 7.3 (unrepresented persons; solicitation)
Other opinions cited:
- NYCBA Formal Op. 2001-3: limiting scope to address conflicts with a witness-client
See also
- NYC Bar Ethics Op. 2019-4: Representing multiple witnesses in an investigation
- NYC Bar Ethics Op. 2017-6: Issuing a subpoena to a current client
- ABA Formal Op. 08-450: Confidentiality when representing multiple clients in the same matter
Source
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