When a lawyer may be called as a witness against a former client in a case his current firm is defending, must he keep silent, talk to opposing counsel, or tell his own firm about the potential conflict?

Plain-English summary

Attorney X had represented a client, Zastrow, while at firm A, then left for firm B. Years later attorney Y began representing Zastrow and sued Clark, who is represented by firm B. Attorney Y contacted attorney X at firm B, told him he might have information from the prior Zastrow representation relevant to the suit, and wanted attorney X to talk about the case without firm B being notified that attorney X might be a witness. Attorney X worked in a separate part of firm B and had no involvement in the Zastrow v. Clark matter; the Zastrow file remained with firm A and was not immediately accessible to him.

On the first question, whether attorney Y's statement that "you may be a witness" was privileged, the committee concluded it was not. Reading Rule 4-101 (defining confidences by reference to the attorney-client privilege) together with Rule 503 of the New Mexico Rules of Evidence (privilege arising from communications to facilitate legal services to the client), the committee reasoned that because attorney X no longer represented Zastrow and was rendering no legal services to him, the communication was not privileged (citing United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (1980)).

On the second question, the committee concluded that while attorney X must still preserve any confidences or secrets from the prior representation under Rule 4-101, nothing in the Code required him to talk with attorney Y or Zastrow now that Zastrow was a former client and attorney X was merely a witness. On the third question, the committee concluded there was nothing to preclude attorney X from telling firm B he might be a witness, and that it would probably be advisable to do so, because firm B might have an obligation to withdraw if there was a substantial relationship between its representation of Clark and attorney X's prior representation of Zastrow. It tied the substantial-relationship standard to Rule 4-101 and United Nuclear, and noted firm B would also have to evaluate Rule 5-102(B) (continuing as counsel when a lawyer in the firm may be called as a witness other than on the client's behalf, until the testimony is or may be prejudicial to the client). Because Rule 1-102 prohibits violating a disciplinary rule, the committee concluded that if attorney X believed firm B might violate Rule 4-101 or Rule 5-102(B), it was incumbent on him to alert his employer to the potential problem without revealing confidences or secrets. On the fourth question, the committee concluded the answers would not change if firm B were a government agency.

Currency note

This opinion was issued in 1987 and applied the former New Mexico Code of Professional Responsibility (Rules 4-101, 5-102(B), and 1-102), which New Mexico replaced with the Rules of Professional Conduct adopted effective January 1, 1987. It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The cited Code provisions have since been superseded. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is opposing counsel's statement that a lawyer "may be a witness" a privileged communication?

A: The opinion concluded it was not, reasoning that because the lawyer no longer represented the former client and was rendering no legal services to him, there was no attorney-client privilege attaching to the statement.

Q: Must a lawyer who is now merely a potential witness talk to his former client's new counsel?

A: No. The committee concluded that, although the lawyer must still preserve the former client's confidences and secrets, nothing in the Code required him to talk with the former client or that client's lawyer.

Q: Should the lawyer tell his own firm that he might be a witness against a former client?

A: The committee concluded he could, and that it would probably be advisable, because the firm might have to withdraw if there was a substantial relationship between its current representation and the lawyer's prior representation of the now-adverse former client.

Q: Could the lawyer reveal the former client's confidences when warning his firm?

A: No. The committee concluded the lawyer should alert his firm to the potential conflict without revealing any confidences or secrets of the prior representation.

Background and rules framework

The opinion applied the former Code: Rule 4-101 (confidences and secrets, and the substantial-relationship disqualification standard drawn from it), Rule 5-102(B) (lawyer as a potential witness other than on the client's behalf), and Rule 1-102 (prohibition on violating a disciplinary rule). It read confidentiality against Rule 503 of the New Mexico Rules of Evidence. These map to current Model Rules 1.6 (confidentiality), 1.9 and 1.10 (duties to former clients and imputed disqualification), and 3.7 (lawyer as witness).

Citations and references

Rules of Professional Conduct:

• Rule 4-101 (preservation of confidences and secrets; substantial-relationship standard)
• Rule 5-102(B) (continued representation when a firm lawyer may be called as a witness other than on the client's behalf)
• Rule 1-102 (a lawyer shall not violate a disciplinary rule)

Other authority:

• Rule 503, New Mexico Rules of Evidence (attorney-client privilege)

Cases:

• United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (1980), appeal dism., 451 U.S. 901 (1981), substantial-relationship disqualification standard

See also

• NM Ethics Op. 1986-3: Lateral Hire Imputed Disqualification and Screening

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1987/1987-4.pdf

Original opinion text

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

Advisory Opinion 1987-4
An attorney has requested an opinion regarding the attorney's obligations to a former client in a situation where the attorney has been informed that he may be called as a witness in a case in which the firm he is presently employed by represents the defendant and the attorney's former client is the plaintiff.
Factual Situation
Attorney X practiced law for a few years at firm A. While at firm A, attorney X had a client by the name of Zastrow. Attorney X left firm A and joined firm B. A few years later, attorney Y began representing Zastrow, attorney X's former client, and filed a lawsuit against Clark, who is represented by firm B.
Attorney Y, knowing attorney X now works for firm B, contacted attorney X at his office in firm B. Attorney Y told attorney X that attorney X may have information from his former representation of Zastrow relevant to the lawsuit by Zastrow against Clark. Attorney X works in a separate part of firm B and had no knowledge of or involvement in the lawsuit by Zastrow against Clark.
Attorney Y and attorney Y's client, Zastrow, want attorney X to speak to them about the case without attorney X's employer, firm B, being notified that attorney X may be a witness in the case. Zastrow's file is with attorney X's former employer, firm A, and the file is not immediately accessible to attorney X.
Questions Presented
1. Is attorney Y's recent communication to attorney X that "you may be a witness in the case" a privileged communication subject to Zastrow's attorney-client privilege?
2. Is it ethical for attorney X not to talk to attorney Y and Zastrow until firm B is notified that attorney X may be a witness in the lawsuit by Zastrow against Clark?
3. Is it ethical for attorney X not to tell his employer, firm B, that he may be an opposing witness in a case defended by firm B?
4. Would the answers above be any different if firm B were a government agency?
Discussion
1. Is attorney Y's recent communication to attorney X that "you may be a witness in the case" a privileged communication subject to Zastrow's attorney-client privilege?
Rule 4-101 of the New Mexico Code of Responsibility provides in pertinent part:
"Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
Since confidence is defined in terms of "the attorney-client privilege under applicable law" and secret refers to "other information gained in the professional relationship," the question of whether the statement to attorney X is a privileged communication is answered by reference to Rule 4-101 of the New Mexico Code of Professional Responsibility and Rule 503 of the New Mexico Rules of Evidence.
Rule 4-101 of the New Mexico Code of Professional Responsibility suggests that the privilege only applies to information gained in the professional relationship. Rule 503(B) of the New Mexico Rules of Evidence indicates that the privilege arises when communications are made for the purpose of facilitating the rendition of professional legal services to the client. Since attorney X is no longer the lawyer for Zastrow, it does not appear that the statement that attorney X may be a witness in the lawsuit is privileged since there is no longer a professional relationship involving attorney X, and attorney X is not rendering professional legal services to Zastrow. See, generally, United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (1980), appeal dism., 451 U.S. 901 (1981).
2. Is it ethical for attorney X not to talk to attorney Y and Zastrow until firm B is notified that attorney X may be a witness in the lawsuit by Zastrow against Clark?
Although attorney X is still required to preserve any confidences or secrets which were disclosed to him during his representation of Zastrow as required by Rule 4-101 of the New Mexico Code of Professional Responsibility, there is nothing in the New Mexico Code of Professional Responsibility that requires attorney X to talk with attorney Y or Zastrow now that Zastrow is a former client of attorney X, and attorney X is merely a witness.
3. Is it ethical for attorney X not to tell his employer, firm B, that he may be an opposing witness in a case defended by firm B?
Assuming that attorney Y's communication to attorney X that "you may be a witness in this case" is not a privileged communication, there is nothing to preclude attorney X from telling firm B about the fact that he may be a witness in the case. In fact, it would probably be advisable for attorney X to tell firm B that he may be a witness in the case since firm B may have an ethical obligation to withdraw as counsel for Clark if there is a substantial relationship between the subject matter of firm B's representation of Clark and attorney X's prior representation of Zastrow. Basically, the substantial relationship standard, which arises from Rule 4-101 of the New Mexico Code of Professional Responsibility, requires disqualification "where an attorney represents a party in a matter in which the adverse party is that attorney's former client ... [and] the subject matter of the two representations are substantially related." United Nuclear Corp. v. General Atomic Co., at 243.
Additionally, firm B will have to evaluate whether it is obligated to withdraw as attorney for Clark pursuant to Rule 5-102(B) of the New Mexico Code of Professional Responsibility, which states:
If, after undertaking employment, in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.
Since Rule 1-102 of the New Mexico Code of Professional Responsibility says that a lawyer shall not violate a disciplinary rule, if attorney X believes that his firm, firm B, may violate Rule 4-101 or Rule 5-102(B) by continuing to represent Clark, it is incumbent upon him to tell his employer about the potential problem, without revealing any confidences or secrets of the prior representation.
Without additional facts, of course, this committee is not in a position to evaluate the precise applicability of the above rules, nor to consider whether any extenuating circumstances may bear on the application of the rules.
4. Would the answers above be any different if firm B were a government agency?
Because the Advisory Opinions Committee has concluded that the communication in issue was not a privileged communication and Attorney X should probably talk to his employer, the above answers would not be any different if firm B were a government agency.