Washington Lawyer - January/February 2022 - 42

SPEAKING OF ETHICS
Can I Get a Witness?
By Erika Stillabower
M
ichelle, a partner at a D.C.
law firm, is currently representing
client Atlas, a government
contractor, in an
ongoing dispute over the sale of a
business unit to Conglomerate
Corporation (CG). It appears a trial is
imminent.
On Tuesday she learns that CG plans to call an
expert named Anton Jones to testify about
CG's financial position as a result of the failed
acquisition. The name sounds familiar but
raises no flags during a quick conflicts check.
On Thursday Michelle bolts awake at 4 a.m.
with a sickening recollection: Anton was the
former business partner of another client, Gary,
whom she represented in a custody dispute.
Gary suffered a financially devasting and professionally
embarrassing setback when Anton
was accused of financial misconduct, though
fortunately the worst details never became
publicly known. While Michelle never represented
Gary in connection with his failed partnership,
he confided in her about it during the
time she worked with him. After searching
through the D.C. Rules, Michelle realizes it's
going to take more than a few minutes to
unwind this conflict, if there even is one.
Performing a conflicts analysis on a complex,
real-world fact pattern is among the most challenging
professional responsibility tasks a
lawyer encounters. In many cases, lawyers who
wish to play it safe can simply refuse to take
on matters that feel as though they are getting
close to the line. But sometimes lawyers
are forced to take a closer look at where the
boundaries are because they either want or
need more work or they are compelled by
their duty of competence (Rule 1.1), of zealous
and diligent representation (Rule 1.3), or for
other reasons.
Enter Legal Ethics Opinion 380, a recent
opinion from the Legal Ethics Committee that
is intended to help lawyers evaluate witnessrelated
conflicts, which can arise under Rule
1.7 (Conflict of Interest: General) and Rule 1.9
(Conflict of Interest: Former Client). Specifically,
the opinion examines when and how conflicts
arise when subpoenaing current or former
clients, advising them about their Fifth Amendment
rights, and cross-examining them. It also
provides guidance on thrust-upon conflicts,
the imputation of witness-related conflicts to
other lawyers in a firm, and managing and
avoiding witness-related conflicts. This article
also draws from Legal Ethics Opinion 381,
which provides a close analysis of conflicts
that may arise when lawyers assist clients in
responding to third-party subpoenas.
CONFIDENTIAL INFORMATION
The first question is what to make of the information
about Anton's misconduct that came
from Michelle's former client, Gary. It may have
been extraneous and unrelated to her representation
of Gary in his custody dispute, but
the mandate of Rule 1.6 is clear:
(a) Except when permitted under paragraph
(c), (d), or (e), a lawyer shall not
knowingly:
(1) reveal a confidence or secret of the
lawyer's client;
(2) use a confidence or secret of the
lawyer's client to the disadvantage of
the client;
(3) use a confidence or secret of the
lawyer's client for the advantage of the
lawyer or of a third person.
(b) " Confidence " refers to information protected
by the attorney-client privilege
under applicable law, and " secret " refers to
42 WASHINGTON LAWYER * JANUARY/FEBRUARY 2022
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.
(Emphasis added.) Rule 1.6(g) extends a
" lawyer's obligation to preserve the client's
confidences and secrets . . . after termination
of the lawyer's employment. "
Theoretically, Michelle could seek informed
consent from Gary to use his confidential information
to cross-examine Anton effectively, but
in light of the damaging nature of the information,
most lawyers would reject this option.
RULES REGARDING CONFLICTS
When a lawyer has an obligation to another
client, third party, or himself that limits his
ability to be a diligent and zealous advocate
on behalf of another client, he has a conflict.
The challenge is correctly identifying the
precise ethics rule under which the conflict
arises because some conflicts are more easily
resolved than others.
Because Gary is a former client, Michelle should
begin with Rule 1.9:
A lawyer who has formerly represented
a client in a matter shall not thereafter represent
another person in the same or a
substantially related matter in which that
person's interests are materially adverse to
the interests of the former client unless the
former client gives informed consent.
Under no interpretation of the rule can Atlas's
litigation be viewed as the same as or substantially
related to Gary's custody dispute, and yet
Michelle still has a problem on her hands. If it
is not a Rule 1.9 issue, the next consideration is
Rule 1.7(b).
Rule 1.7(b) describes four distinct conflicts,
three of which apply only to concurrent
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