Ezel / Ethics Opinions / WISBAR
WISBAR June 25, 2020

Can a Wisconsin lawyer cross-examine a current or former client who is an adverse witness in another case?

Short answer: The opinion concludes that cross-examining a current client is always a conflict under SCR 20:1.7 that requires both clients' signed informed consent to continue, and cross-examining a former client is a conflict if the matters are the same or substantially related or the lawyer would use the former client's protected information against them. Both conflicts are imputed to the lawyer's firm, and where consent is unavailable the lawyer must withdraw.

Apply this to your situation

This page answers the general question as of 2020. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2020
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 Not binding precedent.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

Opinion EF-20-02 (June 25, 2020) addresses whether a lawyer may conduct an adverse examination (cross-examination, deposition, or other discovery) of a current or former client of the lawyer or the lawyer's firm. The committee frames two scenarios: a divorce lawyer whose firm colleague represents the opposing party's sibling, who will be an adverse witness; and a public defender whose key state witness is a former drug-case client. The threshold question is whether the witness is a current or former client, because different rules apply.

For current clients, the committee concludes a conflict always exists. Cross-examining a current client is "directly adverse" under SCR 20:1.7(a)(1), per Comment [6], and it also creates a "significant risk" of material limitation under SCR 20:1.7(a)(2): the lawyer must either examine vigorously (risking the duties of loyalty and confidentiality owed to the witness-client) or pull punches (shortchanging the represented client's right to competent, diligent representation). That conflict is imputed to the whole firm under SCR 20:1.10(a) and cannot be cured by screening, so continued representation is possible only if all of SCR 20:1.7(b)'s informed-consent conditions are met and both clients consent in a signed writing.

For former clients, the analysis runs through SCR 20:1.9. A conflict exists if the prior and current matters are the same or substantially related, judged by whether it is reasonable to assume the lawyer would have obtained relevant information in the prior representation (actual possession is irrelevant). Separately, SCR 20:1.9(c) bars using information relating to the prior representation to the former client's disadvantage unless it is "generally known," a narrow exception (per ABA Formal Opinion 479) that does not cover information merely available in public records like CCAP. Where useful impeachment information cannot be used, the lawyer is materially limited under SCR 20:1.7(a)(2). Applying these rules, the committee concludes the divorce scenario is a current-client conflict consentable only if the matters are unrelated and the witness's information would not aid cross-examination, while the public-defender scenario is a non-consentable former-client conflict (the former client would not consent to use of their substance-abuse history) requiring withdrawal.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. A Wisconsin lawyer who must adversely examine a current client has a conflict in every case and may continue only with both clients' signed informed consent under SCR 20:1.7(b); the conflict is imputed to the firm and cannot be screened. A lawyer who must examine a former client has a conflict where the matters are substantially related or where impeachment would require using the former client's protected information, and the committee concludes that where consent cannot be obtained the lawyer must withdraw. The committee notes the most prudent course, when the need is known early, is to decline the representation.

Common questions

Q: Can a lawyer cross-examine a current client who is a witness against another client?

A: Only with consent. The committee concludes this is always a conflict under SCR 20:1.7, both directly adverse and materially limiting, so the lawyer needs both clients' signed informed consent or must withdraw.

Q: Is examining a former client always a conflict?

A: Not always, but often. The committee concludes a conflict exists if the matters are the same or substantially related, or if the lawyer would use the former client's protected information against them under SCR 20:1.9(c).

Q: Does it matter whether the lawyer actually learned confidential information?

A: Not for the substantial-relationship test. The committee explains the test asks whether it is reasonable to assume the lawyer could have obtained relevant information; actual possession is irrelevant.

Q: Is a public record "generally known" so the lawyer can use it?

A: Usually not. The committee follows ABA Formal Opinion 479 that "generally known" means widely recognized, not merely available in a court file or public database.

Q: Are these conflicts imputed to the whole firm?

A: Yes. The committee concludes both current- and former-client conflicts are imputed under SCR 20:1.10, with screening available only in the narrow former-client situation of prior minor and isolated services at a prior firm.

Background and rules framework

The opinion interprets SCR 20:1.7 / Model Rule 1.7 (current-client conflicts, both "directly adverse" and "materially limited"), SCR 20:1.9 / Model Rule 1.9 (former-client conflicts and the bar on adverse use of protected information, including the narrow "generally known" exception), SCR 20:1.10 / Model Rule 1.10 (imputation and limited screening), and SCR 20:1.8(b), 20:1.6, and 20:1.4 (use of information, confidentiality, and the communication needed for informed consent). It builds on ABA Formal Opinions 92-367 and 479 and on Wisconsin's Burkes v. Hales substantial-relationship analysis.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:1.7 / Model Rule 1.7 (current-client conflicts)
  • Wis. SCR 20:1.9 / Model Rule 1.9 (former-client conflicts; adverse use of information)
  • Wis. SCR 20:1.10 / Model Rule 1.10 (imputation; limited screening)
  • Wis. SCR 20:1.8(b), 20:1.6 / Model Rules 1.8, 1.6 (use of information; confidentiality)
  • Wis. SCR 20:1.4 / Model Rule 1.4 (communication for informed consent)

Cases:

  • Burkes v. Hales, 165 Wis. 2d 585, 478 N.W.2d 37 (Ct. App. 1991), substantial-relationship test
  • State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, disqualification standard distinct from discipline

Other opinions cited:

  • ABA Formal Opinion 92-367: cross-examining a client is sufficiently adverse to trigger Rule 1.7
  • ABA Formal Opinion 479: the narrow "generally known" exception
  • Philadelphia Bar Op. 2014-1: non-waivable conflict examining a former client

See also

Source

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