The Ethics of Simultaneously Representing a Party and a Fact Witness

Chemfree Corp. v. J. Walter, Inc. et al., Case No. 1:04-cv-03711 (N.D. Ga. June 10, 2008) (Camp., J.) (Part II)

(Read Part I discussing Judge Camp’s Order on inequitable conduct and Rule 11.)

In an Order that should serve as a warning to similarly-situated lawyers, Judge Camp responded to a request to investigate possible attorney misconduct stemming from Defendant’s counsel’s simultaneous representation of the Defendants and several fact witnesses. The Court ultimately found insufficient evidence to justify further inquiry, but reminded the attorneys that “bare adherence to the minimum requirements of the Georgia Rules of Professional Conduct is not the hallmark of legal professionalism.”

In support of a prior use defense, Defendants submitted sworn declarations of several fact witnesses. Plaintiff’s counsel sought to depose the witnesses. Three of the witnesses contacted Plaintiff’s counsel about their scheduled depositions, informed Plaintiff’s counsel that they were not represented by counsel, and consented to participate in ex parte interviews with Plaintiff’s counsel. After Plaintiff’s counsel conducted a second interview with one of the witnesses (who had been hired by Defendants as a non-testifying expert consultant prior to submitting his declaration), Defendants’ counsel sent Plaintiff’s counsel a letter indicating that the three witnesses were now represented by Defendants’ counsel. The letter also requested that Plaintiffs’ counsel refrain from any further ex parte communications with the witnesses.

Georgia Rules of Professional Conduct: Plaintiff contended that the representation was a sham to obstruct Plaintiff’s access to the witnesses, and argued that Defendants’ counsel’s simultaneous representation of Defendants and the three fact witnesses violated Rule 1.7 (prohibits representing client if it will materially and adversely affect the representation of another client), Rule 3.4 (prohibits unlawfully obstructing another party’s access to evidence), and Rule 7.3 (imposes constraints on lawyer solicitation) of the Georgia Rules of Professional Conduct.

• Representation of Previously Retained Expert was Proper: The Court quickly disposed of Plaintiff’s allegations with respect to Defendants’ expert consultant. The consultant had been formally retained well before Plaintiff’s counsel attempted to speak ex parte with him. The Court concluded that it was proper for Defendants’ counsel to request Plaintiff’s counsel not to interview Defendants’ consultant outside the environment of a formal deposition.
• There Can Be No Conflict of Interests: With regard to Rule 1.7, the Court noted that it is not facially improper to simultaneously represent a party in a case and also to represent and non-adversarial, fact witness. The Court acknowledged that the “decision to simultaneously represent a third party witness is a strategic method to use privilege to lawfully obstruct some limited discovery.” Such simultaneous representation is improper, however, if a conflict of interest exists. Here, the Court found that “[a]lthough [Defendants’ counsel’s] conduct with respect to these Declarants raises professionalism concerns, no information indicates a conflict of interest existed.” Because there was no showing that the interests of either witness was adverse to the interests of the Defendant, the Court declined to inquire further.
• Tactical Advantage Gained did not Amount to Intentional Obstruction: Looking next to Rule 3.4 (obstruction), the Court found no evidence that Defendants’ counsel intentionally attempted to deprive Plaintiff of access to the witnesses or their evidence. Although Defendant may have gained a tactical advantage from the representation, Plaintiff was not prevented from examining the witnesses under oath. The Court noted, however, that the representation would factor into the witnesses’ credibility.
• Initiating the Question of Representation Would Have Been Unethical: Rule 7.3 prohibits a lawyer from soliciting employment “through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.” (Emphasis added.) In what the Court described as an “ancient, but telling” Informal Opinion from 1965, the ABA Committee on Professional Ethics held that it is not proper for an attorney to invite an independent witness to engage him to represent the witness during deposition. Here, the record was unclear as to whether Defendant’s counsel initiated the question of representing the witnesses as clients. Because Plaintiff offered no evidence that Defendant’s counsel first raised the issue, the Court deemed the record insufficient to justify further inquiry.

Judge Camp concluded his Order with some advice for attorneys that may face this situation:

A simple way for [Defendants’ counsel] to have avoided any appearance of unethical conduct would have been to refer the Declarants to alternative counsel when the issue of representation for the depositions was raised. Such a referral would have saved the time and resources of the Court and counsel for both parties, and it would have upheld the high ethical standards of the profession.