Can a law firm represent a witness at a deposition while another lawyer in the firm represents a party in the same lawsuit?

Plain-English summary

A lawyer asked whether an attorney could represent a pastor at a deposition when the attorney's associate is representing the defendant in the same lawsuit. The committee was of the opinion that as long as the pastor's deposition testimony is not harmful or detrimental to the other client of the law firm, then no conflict of interest is presented.

The committee added that when it becomes reasonably likely that the pastor's testimony will become adverse to the firm's other client, the lawyer would have a conflict. That conflict might not only require the lawyer to withdraw from continuing to represent the pastor, but might also disqualify the firm from continuing to represent the defendant.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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 firm represent both a deposition witness and a party in the same case?

A: The committee said there is no conflict as long as the witness's deposition testimony is not harmful or detrimental to the firm's other client.

Q: What happens if the witness's testimony turns adverse?

A: The committee said that once it becomes reasonably likely the testimony will be adverse to the firm's other client, the lawyer has a conflict.

Q: What are the consequences of that conflict?

A: The committee said it might require the lawyer to withdraw from representing the witness, and might disqualify the firm from continuing to represent the party.

Background and rules framework

The opinion applied RPC 1.7 (ABA Model Rule 1.7), the current-client conflict rule. The committee treated the likelihood that the witness's testimony would become adverse to the firm's party-client as the trigger point: below it, no conflict; at or beyond it, a conflict that can force withdrawal from the witness and disqualify the firm from the party representation.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflict of interest; current clients); Washington RPC 1.7

See also

• WA Ethics Op. 1140: Homeowners Association Dual Representation
• WA Ethics Op. 1555: Prosecutor Married to a Probation Officer

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=650

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1569
Year Issued: 1994
RPC(s): RPC 1.7
Subject: Conflict of interest; law firm representing witness at deposition in case in which firm represents party

The Rules of Professional Conduct (RPC) Committee reviewed your ethics inquiry regarding whether an attorney can represent a pastor at a deposition if his associate attorney is representing the defendant in the same lawsuit. It was the Committee's opinion that as long as the deposition testimony of the pastor is not harmful or detrimental to the other client of your law firm, then no conflict of interest is presented. When it becomes reasonably likely that the pastor's testimony will become adverse to your firm's other client, then you would have a conflict that might not only require you to withdraw from continuing to represent the pastor, but might disqualify your law firm from continuing to represent the defendant.