Imagine you are defense counsel for a retail store and presented with the following hypothetical factual situation:
A plaintiff has filed a civil lawsuit against your client’s store alleging that an employee, while pushing a restocking cart down an aisle, ran over and crushed the plaintiff’s foot. The employee admitted he pushed a cart in the aisle near where plaintiff was present, but denied that he ever came into contact with plaintiff. Another customer was believed to be the only witness to the events.
Plaintiff’s counsel has subpoenaed that independent fact witness for a discovery deposition. You had planned to informally interview the witness prior to the deposition. However, before your interview with the witness, you received correspondence from the plaintiff’s attorney indicating that he will represent the witness at the deposition and warning you not to contact the witness outside of his presence. In addition, plaintiff’s counsel attached two affidavits from his client and the witness consenting to the simultaneous re-presentation. It is later learned that plaintiff’s counsel offered to represent the witness for free.
On its face, this simultaneous representation doesn’t pass the "smell test," and certainly gives the appearance of impropriety. It seems to be a calculated attempt by your opponent to gain control over the witness that could ultimately determine whether the plaintiff wins or loses his case. Logically, it would follow that plaintiff’s counsel should be disqualified from representing the witness. Surprisingly, however, there is a dearth of law supporting the disqualification of an attorney representing both a party and a completely independent witness.
Cases closest on point involve the simultaneous representation of both a corporate defendant and a former employee, or a municipal defendant and a non-party/city employee witness. In both situations, there is a relationship between the deponent and the party, i.e. former employee of a corporation or city employee/witness and his defendant city employer. These cases will not disqualify counsel for the mere appearance of impropriety and, instead, require sufficient evidence of an "actual" conflict, largely to give deference to one’s right to counsel.2 Thus, in the hypothetical, with only suspicions of impropriety and no evidence of an "actual" conflict, the plaintiff’s attorney would likely be allowed to represent the witness at the deposition.
This author submits that the dual representation of a party and an independent witness can negatively impact the truth-searching process, even if unintentionally by an attorney with no improper motives, and should not be allowed. Since an independent witness likely has no prior relationship with the party — as a former employee may have with a corporation or a city employee/witness has with his city employer — the right to counsel should be given less deference. Thus, an exception should be made to the "actual conflict" requirement in cases where the simultaneous representation involves an independent fact witness.
B. Law on Simultaneous Representation
Rule 1.7 of the Illinois Rules of Professional Conduct provides:
a) 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 affect the relationship with the other client; and
(2) each client consents after disclosure.
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 interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after disclosure.
c) When representation of multiple clients in a single matter is undertaken, the disclosure shall include explanation of the implications of the common representation and the advantages and risks involved.
Under 1.7(a), the interests of the hypothetical plaintiff are not necessarily "directly adverse" to the witness, unless the testimony of the witness conflicts with the plaintiff. Rule 1.7(b) is broader in that the representation of the client may not be "materially limited" by the responsibilities to another client. Realistically, in this situation, the plaintiff’s counsel is primarily focused on the plaintiff’s interests, which materially limit his representation of the witness’ interests.
Without much case law nationwide on this issue, arguably the leading case interpreting Rule 1.7 is the Guillen case, which involved a civil rights action against the City of Chicago and a police officer.3 Corporation counsel planned to represent non-party witness/paramedics employed by the City for their depositions.4 Plaintiff moved to disqualify the representation of the paramedics based on a conflict of interest.5 Declaring the significant importance of the right of a party to select counsel of his choice, the court held that, in the absence of sufficient evidence of an "actual conflict," disqualification was not warranted.6 The court cautioned, however, that the city counsel’s behavior during the paramedics’ depositions should be "closely scrutinized," and conceded that a conflict could arise depending on the substance of the paramedics’ testimony and the role of city counsel during the depositions. 7
Guillen is not alone in requiring an actual conflict before disqualifying counsel from simultaneous representation of a party and witness.8 Indeed, it does not appear trial judges are even given much discretion on the issue. For example, in one case, a district court order disqualifying defense counsel from representing a former employee of the defendant for a discovery deposition was vacated on the basis that "inconvenience" is not enough to interfere with the right to counsel. 9
C. Reasons to Eliminate the Requirement of an Actual Conflict for Independent Fact Witnesses
a) No relationship between attorney and witness
First, the representation of a party and an independent witness arguably may be narrowly distinguished from Guillen on the basis that there is at least some prior relationship between a corporate defendant and its former employee, or between the defendant city and its non-party witness/city employee. The former employee may have had direct contact with the corporate attorney while employed by the company, or may be familiar with the reputation of the attorney in the particular area of law. The relationship is even stronger between a currently employed city employee and the city corporation counsel. The corporation counsel would actually represent the employee if he were made a party to a lawsuit concerning his scope of employment. The courts’ deference to clients’ right to retain counsel of their choice is understandable in these situations.10
In contrast, there is likely no prior relationship between a party or his counsel and an independent fact witness. The first contact the witness has with the party’s counsel is probably after receiving the deposition subpoena. Typically, the subpoena instructs the prospective deponent to call the attorney to make scheduling arrangements. During that conversation, the attorney will probably explain the nature of the case and deposition procedures to the witness. The witness is likely unfamiliar with legal proceedings, understandably nervous that he may be subject to liability, and unsure if he needs an attorney for the deposition. Establishing an attorney-client relationship in this situation hardly seems to be at arm’s length.
b) Clients’ consent to conflict is suspect
Second, the executed consent to the conflict by the party and the witness seems to ring hollow. It is no surprise that the plaintiff would consent since it may be to his advantage in the case. The independent fact witness, often unfamiliar with legal proceedings, may only be too glad to be able to consult with an attorney about the upcoming deposition, especially if the representation is discounted or even offered at no charge.11 It is certainly reasonable to question the motives of an attorney offering his services for free in this type of situation. Indeed, it could even be considered the improper solicitation of clients to offer to represent a non-party witness simply because he or she responded to the attorney’s deposition subpoena.12
c) Concerns affecting the truth-seeking process
Third, our hypothetical defense attorney can no longer contact the witness without the presence or permission of plaintiff’s counsel. Plaintiff’s counsel can prepare the witness for the deposition, and the defense attorney will not be able to inquire as to what occurred during that preparation. Potentially, the plaintiff’s counsel could "coach" the witness to testify in a certain manner, or, at least, unintentionally fill any gaps in the memory of the witness through the attorney’s one-sided version of the facts.
Since the attorney is an advocate for the plaintiff’s interests, it is also fair to question which client’s interests are being advanced. For example, during the deposition, the plaintiff’s attorney could object to a question and instruct the witness not to answer. While the court would likely determine whether the objection was technically proper, there still would be the concern of whether the attorney was objecting for the interests of the plaintiff or the witness. In addition, what if during the preparation for the deposition, the witness told the plaintiff’s counsel that the employee did not run over the plaintiff’s foot? In that situation, how could the plaintiff’s counsel realistically give independent advice to the witness who will likely derail his other client’s case?
The concern of the Guillen court that to disqualify the attorney "presumes" that the attorney will not act ethically is an overstatement in this situation.13 Unlike a disinterested independent witness, an attorney is an advocate and makes the strongest argument for the client within the bounds of ethics. The truth is often not a black/white proposition. The truth can be somewhat subjective based on the interpretations of facts or events. People may have different interpretations of the same facts and draw different conclusions. Thus, an attorney may unintentionally influence the witness’ recollections in preparing for the deposition by the discussion of the attorney’s interpretation of facts. The attorney may similarly not consciously be aware of the blurring of the line between the respective interests of his two clients. By merely representing both parties, an unintentional, "actual" conflict of interest may exist, even with the most ethical practitioner.
The appearance of impropriety is very strong when an attorney offers to represent an independent fact witness for "free." There appears to be no justifiable reason for such representation, other than to improperly gain an advantage over an opponent. At a minimum, there is a legitimate concern that the representation may unintentionally hinder the truth-seeking process. Thus, attorneys should be disqualified from simultaneously representing both a party and an independent fact witness, without the requirement of an actual conflict.
1 The author recognizes the research contributions of Charles A. Hafner for this article.
2 See, e.g., Guillen v. City of Chicago, 956 F.Supp. 1416 (N.D.Ill. 1997).
3 956 F.Supp. at 1419.
4 Id. at 1419.
6 Id. at 1420-22
7 Id. at 1425-27.
8 See, e.g., United States v. Occidental Chemical Corp., 606 F.Supp. 1470 (W.D.N.Y. 1985) (court found no conflict of interest where defendant’s attorneys represented a former employee of the defendant during discovery proceedings).
9 In re Coordinated Pretrial Proceedings, 658 F.2d 1355, 1356 (9th Cir. 1981).
10 See, e.g., Guillen, 956 F.Supp. at 1421.
11 Jewell-Rung Agency, Inc. V Haddad Org., Ltd., 814 F. Supp. 337, 343 (S.D.N.Y. 1993) (where court warned defense counsel that its firm policy of offering to represent former employees of corporate clients for free "presents potential for abuse in that it provides a means for the corporate party to exert influence and control over a nonparty witness").
12 American Bar Association Informal Ethics Opinion, p. 437, No. 828, March 3, 1965.
13 Guillen, 956 F.Supp. at 1423 (citing Clay v. Doherty, 608 F.Supp 295, 304) (N.D.Ill.1985) (emphasis not added).
Gawain Charlton-Perrin is Chair of the ARDC Defense and Ethics Practice Group at the law firm of Cassiday, Schade & Gloor in Chicago. Mr. Charlton-Perrin concentrates on defending and consulting with attorneys in ethical and malpractice issues.