Does a Washington lawyer have to tell opposing counsel the name of a material witness without a discovery request?

Plain-English summary

The lawyer asked about the obligation to disclose the name of a material witness to opposing counsel. The committee determined that, absent a formal discovery request or court requirement, the lawyer has no obligation to give the information to opposing counsel.

The committee added that if, in the common course of the lawyer's dealings with opposing counsel, there is a reasonable expectation between counsel that discovery will be freely provided and such information given, then RPC 1.4, 3.6, and 8.4(c) may be applicable.

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. Washington's cited rules include RPC 1.4 (communication, corresponding to ABA Model Rule 1.4) and RPC 8.4(c) (dishonesty, corresponding to ABA Model Rule 8.4); the opinion also cites Washington RPC 3.6.

Common questions

Q: Must a lawyer volunteer a material witness's name to the other side?

A: The committee determined that, absent a formal discovery request or court requirement, the lawyer has no obligation to give the witness's name to opposing counsel.

Q: When could the rules still apply?

A: The committee said that if there is a reasonable expectation between counsel, in their common course of dealing, that discovery will be freely provided and such information given, then RPC 1.4, 3.6, and 8.4(c) may apply.

Background and rules framework

The opinion treated the duty to disclose a material witness as governed first by formal discovery and court requirements rather than by an independent ethical duty to opposing counsel. It identified RPC 1.4 (communication, corresponding to ABA Model Rule 1.4), RPC 3.6, and RPC 8.4(c) (dishonesty, fraud, deceit, or misrepresentation, corresponding to ABA Model Rule 8.4) as potentially applicable where a reasonable expectation of free exchange has arisen between counsel.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.4 (communication); Washington RPC 1.4
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4(c)
• Washington RPC 3.6 (as cited in the opinion)

See also

• WSBA Ethics Op. 1173: Client's Negligent False Answers
• WA Ethics Op. 1264: Misleading Garnishment Answer
• WA Ethics Op. 1250: Ex Parte Sentencing Candor

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=798

Original opinion text

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

Advisory Opinion: 1724
Year Issued: 1997
RPC(s): RPC 1.4; 3.6; 8.4(c)
Subject: Obligation to disclose name of material witness to opposing counsel

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry regarding your obligation to disclose the name of a material witness to opposing counsel. The Committee determined that absent a formal discovery request or court requirement, you have no obligation to give the information to opposing counsel. However, if in the common course of your dealing with opposing counsel, there is a reasonable expectation between counsel that discovery will be freely provided and such information given, then RPC 1.4, 3.6, and 8.4(c) may be applicable.