I represent a client in a slip-and-fall case, and one of the defendants' witnesses turns out to be another current client of mine in an unrelated workers' comp matter. I need to depose and cross-examine that witness. Do I have a conflict, and must I withdraw?

Plain-English summary

The inquiring attorney represents a client in a third-party, work-related slip-and-fall case against the worksite general contractor and others. The defendants disclaimed liability and identified as a witness the safety coordinator who investigated the client's allegations on their behalf. When the attorney set out to depose that witness, the attorney discovered the witness was in fact another current client, in an unrelated 2016 workers' compensation matter with an open but inactive claim. The attorney postponed the deposition and asked whether a conflict required withdrawal from either or both representations.

The panel concluded a conflict exists and that the attorney must withdraw from representing both the client and the witness. It applied Rule 1.7. Even though the two representations are unrelated, the clients' interests are directly adverse because the witness is a material witness for the defendants, obligating the attorney to depose (and potentially cross-examine, impeach, and confront) the witness on the client's behalf. The panel identified this as a classic Rule 1.7(a)(1) conflict, citing Comment [6] on cross-examining a client who appears as a witness in a matter involving another client.

The panel then found the conflict nonconsentable. The attorney's coincident duties to zealously represent both clients are incompatible: the duty to the slip-and-fall client requires adversarial confrontation of the witness, while the client may reasonably fear the case will be pursued less effectively out of deference to the witness-client; at the same time, that adversarial advocacy could irretrievably damage the attorney's relationship with the witness-client. Because there was no way to reconcile the duties without prejudicing one or both (citing Opinion 2004-06), consent could not cure the conflict. The panel held withdrawal from both representations was the attorney's sole remedy under Rule 1.16(a)(1), and reminded the attorney to take the Rule 1.16(d) steps to mitigate harm, including notice, time to find replacement counsel, return of papers and property, and refund of any unearned fees.

In practice

Under this opinion, a lawyer who discovers that an adverse witness in one client's case is also a current client in an unrelated matter faces a directly adverse conflict under Rule 1.7(a)(1) that, on facts like these, is nonconsentable, so client consent cannot save either representation. The panel held the lawyer must withdraw from both under Rule 1.16(a)(1) and take the Rule 1.16(d) steps to protect both clients on the way out, including notice, time to obtain new counsel, return of property, and refund of unearned fees.

Common questions

Q: Is it a conflict if my adverse witness turns out to be my client in a completely unrelated matter?

A: Yes. The panel held the interests are directly adverse under Rule 1.7(a)(1) because you must depose and confront the witness on another client's behalf, even though the two matters are unrelated.

Q: Can I fix it with informed consent from both clients?

A: No. The panel found the conflict nonconsentable because the zealous-representation duties owed to both clients cannot be reconciled; adversarial confrontation of the witness-client is irreconcilable with loyalty to that client.

Q: What must I do?

A: The panel held withdrawal from both representations is the sole remedy under Rule 1.16(a)(1), and directed the attorney to take Rule 1.16(d) steps to mitigate harm, including notice, time to select replacement counsel, returning papers and property, and refunding unearned fees.

Background and rules framework

The opinion applies Rule 1.7 (Model Rule 1.7), which prohibits representation involving a concurrent conflict, including directly adverse representation (1.7(a)(1)), unless the conflict is consentable and each client gives informed consent (1.7(b)). Informed consent is defined by Rule 1.0(e). Where the conflict cannot be reconciled with the duty of diligence (Rule 1.3), it is nonconsentable, and Rule 1.16(a)(1) requires withdrawal, with Rule 1.16(d) governing the steps to protect the clients.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.16 (declining or terminating representation); MR 1.3 (diligence)
• RI RPC 1.7, 1.16, 1.3, 1.0(e)

Statutes:

• None cited.

Cases:

• Markham Concepts, Inc. v. Hasbro, Inc., 196 F. Supp. 3d 345, 349 (D.R.I. 2016), Rule 1.7 grounded in the duty of loyalty

Other opinions cited:

• RI EAP Op. 2004-06 (conflict nonconsentable where the attorney could not effectively represent either party even with informed consent)

See also

• RI EAP Op. 2004-06: Nonwaivable Rule 1.9 Conflict in an Immigration Matter
• RI EAP Op. 2024-03: Representing Both Buyer and Seller in the Same Real Estate Sale

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP-2024-05.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2024-05
Issued July 11, 2024

FACTS

The inquiring attorney represents a client (the "Client") in a third-party, work-related slip-and-fall case against the worksite general contractor and other entities. The defendants have disclaimed liability on the ground that they are not responsible for the Client's injuries and/or the Client is responsible for his or her own injuries. In support of their position, the defendants have identified as one of their witnesses a safety coordinator who investigated the Client's allegations on behalf of the defendants (the "Witness").

The inquiring attorney intends to depose the Witness. However, the inquiring attorney has learned that the Witness is in fact his or her current client with an unrelated workers' compensation matter dating from 2016 with an open claim for medical benefits but no recent claim activity. Based on this revelation, the inquiring attorney has postponed the deposition and asks whether a conflict of interest exists such that he or she must withdraw from representing the Client and/or the Witness.

ISSUE PRESENTED

The inquiring attorney asks whether a conflict of interest exists such that he or she must withdraw from representing the Client and/or the Witness under the Rules of Professional Conduct?

OPINION

It is the Panel's opinion that a conflict of interest does exist, such that the inquiring attorney must withdraw from representing both the Client and the Witness under the Rules of Professional Conduct.

REASONING

This inquiry implicates several interrelated Rules of Professional Conduct. The Panel's first step is to determine the existence or absence of a conflict of interest. Conflicts of interest are governed by Rule 1.7:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

"Rule 1.7 is grounded primarily upon the attorney's duty of loyalty to his or her client." Markham Concepts, Inc. v. Hasbro, Inc., 196 F. Supp. 3d 345, 349 (D.R.I. 2016) (interpreting Rhode Island Rule of Professional Conduct 1.7). "Resolution of a conflict of interest problem under this Rule requires the lawyer to: 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 consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing." Rule 1.7, Comment [2].

Here, the inquiring attorney represents both the Client and the Witness in unrelated matters. However, the interests of the Client and the Witness are nonetheless directly adverse because the Witness is a material witness for the defendants in the Client's slip-and-fall case, obligating the inquiring attorney to depose him or her on the Client's behalf. This is a classic conflict-of-interest scenario under Rule 1.7(a)(1). See Rule 1.7, Comment [6] (recognizing that "a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit").

Accordingly, the Panel must next ascertain whether the conflict may be overcome by obtaining the Client's and the Witness' written, informed consent. See Rule 1.7(b)(4); see also Rule 1.7, Comment [13] (observing that "[o]rdinarily, clients may consent to representation notwithstanding a conflict"). To be informed, consent may be made only "after the [inquiring] lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." Rule 1.0(e); see also Rule 1.7, Comment [17] (explaining that "[i]nformed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client"). The written instrument evincing the clients' consent "may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent." Rule 1.7, Comment [19]; see Rule 1.0(n) (defining the term "writing" to include electronic transmissions).

"However, as indicated in Rule 1.7, some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." Rule 1.7, Comment [13]. "Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest." Rule 1.7, Comment [14]. Such interests are set forth in Rule 1.7(b)(1) through (3).

In this case, the Panel finds that the conflict is nonconsentable because the inquiring attorney's coincident duties to zealously represent both the Client and the Witness are incompatible. See Rule 1.3, Comment [1]. On the one hand, the inquiring attorney's duty to the Client obligates him or her to depose the Witness in an adversarial manner because the Witness is acting on behalf of the defendants who stand in opposition to the Client. This obligation extends throughout the litigation, as the inquiring attorney may be required to cross-examine the Witness at trial, impeach the Witness' credibility, challenge the content of the Witness' testimony, present contrary evidence, or otherwise confront the Witness in furtherance of his or her representation of the Client. However, owing to the inquiring attorney's simultaneous representation of the Witness, the Client may justifiably fear "that the [inquiring attorney] will pursue [the C]lient's case less effectively out of deference to the [Witness], i.e., that the representation may be materially limited by the [inquiring attorney's] interest in retaining the [Witness as his or her] client." Rule 1.7, Comment [6]. Such fear could impair the Client's attorney-client relationship with the inquiring attorney and undermine the representation. See id.

On the other hand, the inquiring attorney also owes the Witness the same duty of zealous representation in the Witness' workers' compensation matter. His or her actions when representing of the Client could irretrievably sunder this relationship due to the fundamentally adversarial nature of such advocacy as described above. See Rule 1.7, Comment [6] (recognizing that "[t]he client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively"). As such, there is no way for the inquiring attorney to reconcile his duties to both the Client and Witness without prejudicing them. See Rhode Island Ethics Advisory Panel Op. 2004-06 (determining that a conflict of interest was nonconsentable because the inquiring attorney could not effectively represent either party even with their informed consent). As such, it is functionally impossible for the inquiring attorney to adequately represent either the Client or the Witness under these limitations. See Rule 1.7, Comment [4] (recognizing that "[w]here more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to represent adequately the remaining client or clients, given the lawyer's duties to the former client").

Accordingly, the Panel finds that withdrawal from both representations is the inquiring attorney's sole remedy here. Withdrawal from and termination of a representation is governed by Rule 1.16. Subsection (a)(1) authorizes withdrawal when "the representation will result in violation of the rules of professional conduct or other law . . . ." The concurrent conflict of interest here, and the inquiring attorney's circumstantial inability to represent either party with the appropriate zealousness and commitment resulting therefrom, satisfies this condition. See Rule 1.16, Comment [1] (observing that a lawyer should not accept or continue a representation "unless it can be performed competently, promptly, without improper conflict of interest and to completion").

Before withdrawing from and terminating his or her representation of the Client and the Witness, the inquiring attorney should take all reasonable steps required by Rule 1.16(d) to mitigate the consequences to them of his or her withdrawal, including, but not limited to, providing notice to them of his or her intention to terminate representation—permitting them time to select replacement counsel—returning their papers and property, and refunding any unearned fees or expenses. This is a non-exhaustive list of mitigation steps; the particular circumstances of the matter may require additional efforts. See Hazard, Hodes, Jarvis, and Thompson, The Law of Lawyering, § 21.18 n. 56, pg. 34 (2023).