Ezel / Ethics Opinions / OSB
OSB August 2005

Can a lawyer represent a criminal defendant when a former client of the lawyer will testify as an expert witness for the prosecution?

Short answer: No, qualified. A lawyer is not barred merely because a former client testifies adversely, but here the lawyer learned of the former client's wrongdoing during the earlier representation, making the matters substantially related; the lawyer may not represent the defendant without the former client's informed consent confirmed in writing, and may not disclose the confidential information.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
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 Not binding precedent.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 on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

A lawyer formerly represented an expert witness who is employed by the state and frequently testifies for the state in criminal trials. During that representation, the lawyer learned of wrongdoing by the expert witness in performing official duties. That representation is now over. The lawyer is later asked to represent a criminal defendant, and learns the same expert witness will testify for the state in that prosecution. The opinion asks whether the lawyer may take or keep the defendant's case, and answers "No, qualified."

The opinion frames the analysis under Oregon RPC 1.6 (confidentiality) and Oregon RPC 1.9 (duties to former clients). It states the general rule that a lawyer is not required to decline employment or withdraw merely because a former client will testify as an adverse witness. The problem here is the specific confidential information: RPC 1.6 prohibits the lawyer from disclosing what was learned from the expert witness absent informed consent, and RPC 1.9(c) prohibits using or revealing that information to the former client's disadvantage.

The opinion concludes that Oregon RPC 1.9(a) also bars the representation absent the expert witness's informed consent, confirmed in writing, because the lawyer's possession of confidential information about the witness's wrongdoing, relevant to the new matter, makes the prior and current matters substantially related. Matters are substantially related, the opinion explains (quoting the comment to ABA Model RPC 1.9), when there is a substantial risk that confidential factual information normally obtained in the prior representation would materially advance the client's position in the later matter.

In practice

The opinion holds that, under the Oregon rules as they stood at the time, the bar is not automatic: a lawyer may face a former client as an adverse witness in the ordinary case. What controls here is that the lawyer holds confidential information about the former client's wrongdoing that is relevant to the new case, which both ties the matters together under RPC 1.9(a) and constrains the lawyer's use of the information under RPC 1.6 and 1.9(c). The qualification in the conclusion is that the representation becomes permissible only with the former client's informed consent confirmed in writing. Verify the current text of Oregon RPC 1.6 and 1.9 before relying on any specific point.

Common questions

Q: Does a lawyer always have to drop a case when a former client will testify against the lawyer's new client?

A: No. The opinion states a lawyer is not required to decline employment or withdraw merely because a former client will testify as an adverse witness.

Q: Why is this representation barred, then?

A: Because the lawyer learned of the former client's wrongdoing during the earlier representation, and that confidential information is relevant to the new matter, making the two matters substantially related under Oregon RPC 1.9(a).

Q: Can the lawyer take the case with consent?

A: Yes, qualified. Per the opinion, the lawyer may proceed only with the former client's informed consent confirmed in writing, and still may not use or reveal the confidential information to the former client's disadvantage.

Background and rules framework

The opinion interprets Oregon RPC 1.6 (confidentiality of information relating to the representation) and Oregon RPC 1.9 (duties to former clients, including the substantial-relationship test in 1.9(a) and the use-and-disclosure limits in 1.9(c)), corresponding to Model Rules 1.6 and 1.9. It draws the substantial-relationship standard from the comment to ABA Model RPC 1.9.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.6 / Model Rule 1.6 (confidentiality of information)
  • Oregon RPC 1.9(a), (c) / Model Rule 1.9 (duties to former clients)

Cases:

  • State v. Riddle, 330 Or 471, 8 P3d 980 (2000)
  • In re Howser, 329 Or 404, 987 P2d 496 (1999)
  • United States v. Moscony, 927 F2d 742 (3d Cir 1991)

Other opinions cited:

  • OSB Formal Ethics Op. No. 2005-17 (former client, use of confidential information)
  • OSB Formal Ethics Op. No. 2005-11 (former client, matter-specific conflicts)

See also

Source

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