Ethics Hotline & Opinions

ETHICS DOCKET NO. 2000-15

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2000-15

Conflict: May a lawyer represent a client when another client may be called as a witness in the new client’s case?

 

You currently represent a husband (client H) in a domestic matter (case 1). You further indicate that the matter had been settled, although a final judgment of divorce or QDRO has not been received. More recently you have been requested to represent a wife (client W) (not the wife of client H) in a different domestic case (case 2) which is scheduled for trial in the near future. You have been advised by the attorney representing the husband in case 2 that he wishes to call client H as a witness in that client now lives with client W. Your inquiry raises the question as to whether or not this raises a conflict in your representation of client W.

It would appear that the guiding principles relevant tot he issue raised in your letter are found in Rule 1.7 of Professional Conduct which reads as follows:

  1. a lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely effect the relationship with the other client; (2) each client consents after consultation. (b) a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interest, unless:
  1. the lawyer reasonably believes the representation will not be adversely effected; and (2) the client consents after consultation.
  1. the consultation required by paragraphs (a) and (b) shall include explanation of the implications that a common representation and any limitations from the lawyer's responsibility to another, or from the lawyer's own interest, as well as the advantages and risks involved.

In docket 83-24, the Committee on Ethics had the opportunity to consider a similar matter. The Committee was called upon at that time to determine whether it was proper for an attorney to continue to represent a client if he would have to cross examine a former client utilizing information in the current matter which the attorney gained through his prior representation of the former client. In Ethics Docket 83-24 the Committee ruled that an attorney could continue his representation upon his former client giving an "intelligent, knowing and voluntary consent after full disclosure by the

attorney." The Committee additionally opined: "that the attorney must carefully examine whether his representation of the current client in any way adversely effects the interest of the former client regarding information acquired during representation of the former client."

You must also take into consideration the dictates of Rule 1.6 dealing with confidentiality of information. Any information obtained from client H must remain confidential (unless client H will be adverse to him or in some manner be limited by your loyalties to client H or involve confidential information attained by your representation of client H. Even should you determine that no problem would arise, Rule 1.7 clearly requires the consent of both of your clients after consultation as set forth in Rule 1.7(c).

 

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.