If a lawyer's own client turns out to be the opposing party's expert witness in another case the lawyer is defending, can the lawyer keep handling that case?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring lawyer discovered that a client in one case would be the plaintiff's expert witness in a second case the lawyer was defending. That overlap would put the lawyer in the position of having to depose and cross-examine the lawyer's own client.
The committee agreed with the inquirer's own analysis that, on these facts, RPC 1.6 and 1.7(b) would require the lawyer to withdraw from the second case, the one in which the lawyer would be required to examine the lawyer's own client.
Currency note
This opinion was issued in 1987, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer cross-examine a current client who is testifying as the opposing party's expert?
A: Per the committee, no. It concluded that having to depose and cross-examine the lawyer's own client triggered RPC 1.6 and 1.7(b) and required withdrawal from that case.
Q: Which case does the lawyer have to leave?
A: The committee directed withdrawal from the second case, the one in which the lawyer would have had to examine the client who was serving as the opposing side's expert.
Background and rules framework
The opinion applied RPC 1.6 (confidentiality of information) and RPC 1.7(b) (the then-current Washington conflict rule for a representation that may be materially limited by the lawyer's other responsibilities), corresponding to ABA Model Rules 1.6 and 1.7. The committee treated the prospect of deposing and cross-examining the lawyer's own client as a conflict requiring withdrawal from the case in which the examination would occur.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6
- ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7(b)
See also
- WSBA Ethics Op. 1569: Representing a Witness and a Party
- WSBA Ethics Op. 1057: Unemployment Claim Conflict
- WSBA Ethics Op. 1367: Lawyer-Witness in a Fee Share
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=1136
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1096
Year Issued: 1987
RPC(s): RPC 1.6; 1.7(b)
Subject: Conflict of interest; client is opposing expert witness in case lawyer is defending
The Committee agreed with your analysis that when you discovered that a client in one case would be plaintiff's expert witness is a second case which you were defending, putting you in the situation of having to depose and cross-examine your own client, Rule 1.6 and 1.7(b) of the Rules of Professional Conduct would require you to withdraw in the second case in which you would be required to examine your own client.
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