Ezel / Ethics Opinions / NYSBA
NYSBA 2015-01-08

Can in-house counsel be interviewed by an agency investigating the company, and can the lawyer still act as advocate if it becomes a hearing?

Short answer: In-house counsel may submit to an agency interview about the company's alleged wrongdoing where the facts disclosed are not confidential information. But if the investigation becomes a proceeding before a tribunal and the lawyer is likely to be a witness on a significant issue of fact, the lawyer may not also act as an advocate before that tribunal, absent an exception to the advocate-witness rule.
Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1045: In-house counsel as a witness in an agency investigation

Short answer: In-house counsel may voluntarily submit to an administrative agency's investigative interview about the company where the facts disclosed are not confidential information, but if the matter later proceeds before a tribunal and the lawyer is likely to be a witness on a significant issue of fact, the lawyer may not also serve as an advocate before that tribunal absent an exception to the advocate-witness rule.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

In-house counsel for a corporation was asked to sit voluntarily for an interview with an administrative agency investigating a third party's charge of wrongdoing by the company. The lawyer had participated in the meeting at issue, the company did not object, and the facts to be discussed were neither privileged nor otherwise confidential (not embarrassing or detrimental to the company and not subject to a confidentiality request). If the agency later credited the charge, it could file charges and hold a hearing (¶ 1). The question was whether the lawyer could submit to the interview on those facts (¶ 2).

On confidentiality, the committee found no issue under Rule 1.6 on the stated assumptions, because the information was not privileged, not embarrassing or detrimental, and not subject to a confidentiality request; it added that if the information were embarrassing or detrimental, or the client had asked that it be kept confidential, the lawyer could not disclose it without informed consent (¶ 3).

On the advocate-witness rule, the committee explained that Rule 3.7(a) bars a lawyer from acting as advocate before a "tribunal" in a matter where the lawyer is likely to be a witness on a significant issue of fact, and that a "tribunal" includes an administrative agency acting in an adjudicative capacity (¶ 4). At the investigative stage the agency is not acting adjudicatively, so Rule 3.7(a) is not yet implicated (¶ 5). But if the agency brings a formal complaint, it acts adjudicatively, and if the lawyer is likely to be a witness on a significant issue of fact, the lawyer may not act as advocate before that tribunal unless an exception applies (¶ 6, citing N.Y. State 642). Whether the lawyer is "likely" to be such a witness is a fact question turning on whether other testimony makes the lawyer's account cumulative (¶ 7, citing MacArthur v. Bank of New York). The committee stressed that Rule 3.7(a) does not let the lawyer choose between testifying and advocating, that it applies regardless of which side calls the lawyer or whether the testimony favors the client, and that client consent does not cure it (¶ 8). Finally, Rule 1.1(c) bars a lawyer from intentionally prejudicing the client, which could occur if the lawyer withheld material testimony at either stage (¶ 9).

In practice

Under the New York rules as they stood at the time of the opinion, the committee separated the two stages. During the agency's investigation, in-house counsel may give the interview if the facts disclosed are not confidential information under Rule 1.6, and the lawyer must not voluntarily disclose information that is privileged, embarrassing or detrimental, or subject to a confidentiality request without informed consent. If the matter advances to an adjudicative proceeding and the lawyer is likely to be a witness on a significant issue of fact, the advocate-witness rule applies: the lawyer cannot serve as advocate before that tribunal, the lawyer cannot choose testimony over advocacy or the reverse, and client consent does not change the result, though the lawyer may still assist outside the courtroom, such as by directing outside counsel.

Common questions

Q: Can in-house counsel be interviewed by an agency investigating the company?

A: Yes, where the facts the lawyer would disclose are not confidential information under Rule 1.6. The committee found no Rule 1.6 issue on the stated assumptions (¶¶ 3, 10).

Q: Does the advocate-witness rule apply during the investigation?

A: No. At the investigative stage the agency is not acting in an adjudicative capacity, so Rule 3.7(a) is not yet implicated (¶ 5).

Q: What happens if the agency brings charges and holds a hearing?

A: If the agency acts adjudicatively and the lawyer is likely to be a witness on a significant issue of fact, the lawyer may not act as advocate before that tribunal absent an exception (¶ 6).

Q: Can the client consent to let the lawyer both testify and advocate?

A: No. The committee stated the rule is mandatory and is not eliminated by client consent; the lawyer cannot choose between testifying and advocating (¶ 8).

Background and rules framework

The opinion interprets New York Rule 3.7(a) (the advocate-witness rule) and Rule 1.6(a) (confidentiality), with the Rule 1.0(w) definition of "tribunal" and a reference to Rule 1.1(c) (not intentionally prejudicing the client), corresponding to ABA Model Rules 3.7, 1.6, and 1.1. The analysis turns on whether the agency is acting in an adjudicative capacity and on whether the lawyer is likely to be a witness on a significant issue of fact.

Citations and references

Rules of Professional Conduct:

  • MR 3.7 / NY RPC 3.7(a) (advocate-witness rule)
  • MR 1.6 / NY RPC 1.6(a) (confidentiality)
  • MR 1.1 / NY RPC 1.1(c) (not intentionally prejudicing the client)
  • NY RPC 1.0(w) (definition of "tribunal")

Cases:

  • MacArthur v. Bank of New York, 524 F. Supp. 1205 (S.D.N.Y. 1981), when a lawyer's testimony is significant rather than cumulative

Other opinions cited:

  • N.Y. State 642 (1993): a lawyer who negotiated a collective bargaining agreement could not both represent the union and testify in an arbitration about it
  • ABA Inf. 89-1529 (1989): a disqualified lawyer may still assist outside the courtroom

See also

Source