"Your Witness, Counsel"
By Deanna S. Brocker
Note: for the full text of this quarter’s ethics opinions, see page 39.
Most would agree that it is ordinarily inappropriate to cross-examine a witness who is also a current client in an unrelated matter.2 Such conduct would not only raise an eyebrow or two, it would also create a conflict of interest under Rule 1.7(b) of the Revised Rules of Professional Conduct. Undertaking an obligation in which an attorney may be required to question an existing client’s credibility violates an attorney’s duty of loyalty to that client.3
But, may an attorney cross-examine a former client? Cross-examination of a former client most often gives rise to a conflict if the attorney either misuses confidential information previously obtained from the witness or fails to cross-examine the witness effectively for fear of misusing confidential information.4 Here’s an example.
Attorney A is defending Client A in a medical malpractice case. One of plaintiff’s witnesses, Nurse, is Attorney A’s former client. Attorney A previously represented Nurse in a civil settlement of a bad check claim. No criminal charges were ever brought. As Nurse’s lawyer, Attorney A was privy to certain information that is relevant to Nurse’s character for truthfulness.
Under these circumstances, the Revised Rules clearly prohibit Attorney A from using confidential information against the former client or to the advantage of Client A.5 At the same time, such information would be useful in impeaching Nurse’s testimony, and Attorney A’s duty of loyalty to Client A would require that he utilize this information to Client A’s advantage. These competing duties present a conflict of interest under Rules 1.7(b) and 1.9(c). Attorney A may only continue representation if (1) he is satisfied that the representation of Client A will not be adversely affected, and (2) after full disclosure, he obtains consent from both Client A and Nurse. Initially, Attorney A must explain to Nurse the nature of the cross-examination and obtain her consent to use confidential information relating to the prior representation.6 In addition, in the unlikely event Nurse agrees to the use of this information, Attorney A should also obtain consent from Client A, who must be satisfied Attorney A will zealously represent his interests and thoroughly cross-examine Nurse.7 Without consent from Nurse and Client A, Attorney A must withdraw from the representation.
To change the hypothetical slightly, suppose the former representation of Nurse involved a simple real estate closing and Attorney A learned nothing during the professional relationship which could be of use in the current matter. If Attorney A believes the representation of Client A will not be adversely affected, Attorney A may continue with the representation, subject only to Client A’s approval after full disclosure.8 Consent from the former client is unnecessary. See Rule 1.9(c).
Finally, there is a new provision in the Revised Rules of Professional Conduct which may provide an exception to the general prohibition on cross-examination of a client. Rule 1.9(c) of the Revised Rules permits an attorney to use confidential information to the disadvantage of a former client “when the information has become generally known.” The Ethics Committee is presently considering an ethics inquiry regarding representation in a criminal case that requires the committee to interpret this rule. The question is whether an attorney may ethically cross-examine a witness about the fact of his criminal conviction, a matter of public record, if the attorney previously represented the witness in that matter. The committee will need to strike a delicate balance in defining the “generally known” language. While we must give meaning to this exception to confidentiality, it must not be so broad as to discourage a client from communicating fully and frankly with his or her attorney, even as to embarrassing or legally damaging information.
Some factors the committee may consider in determining if client information is “generally known” are: 1) whether the information is known by a relevant sector of the public, 2) whether the information is a matter of public record, 3) whether the information is easily accessible or would require specialized knowledge to obtain it, 4) whether the former client has reasonable expectations of confidentiality with respect to the information, and 5) whether public policy favors excepting this information from the confidentiality rules. Look forward to a proposed opinion tackling these difficult issues in this or a subsequent edition of the State Bar Journal.
Deanna S. Brocker is the ethics counsel for the North Carolina State Bar.
1. Authority from other jurisdictions is scant. See Connecticut Bar Association Committee on Professional Ethics, Informal Opinion 97-6 (March 4, 1997); Maryland State Bar Association, Opinion 83-24 (December 6, 1982); Delaware State Bar Association, Professional Ethics Opinion 1981-4 (June 4, 1981); The Missouri Bar, Informal Opinion 10 (November 7, 1980).
2. One can imagine the rare situation where an attorney is called upon to question an existing client, who is purely a fact witness, on peripheral matters only or for clarification of his testimony. The attorney knows of no information by virtue of his professional relationship with the witness which could be of use in the cross-examination. Even under these circumstances, client consent is required. Rule 1.7(b).
3. Assuming Attorney represents Client A in a matter in which he will have to use confidential information to cross-examine Client B, an existing client, Attorney’s only choice is withdrawal from the representation of Client A. On the one hand, if Attorney chooses to continue representation of Client A and withdraws from the representation of Client B, Rule 1.9 on conflicts involving former clients would govern. If, on the other hand, Attorney chooses to continue only the representation of Client B and withdraws from representing Client A, Attorney will no longer have a conflict because he will not be cross-examining either a present or former client.
4. Cross-examination of a former client can also lead to two other types of conflicts: (1) an attorney’s pecuniary interest in furthering a professional relationship with the witness can interfere with his ability to appropriately cross-examine the witness, and (2) an attorney may place his own credibility at issue either in the cross-examination itself or in attacking the witness’ testimony in summation.
5. Rules 1.6(2) and (3); 1.9(c).
6. Rule 1.9(c).
7. Rule 1.7(b).
8. Rule 1.7(b).
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