Wisconsin Lawyer: Ethics Can Discovery Put Clients at Cross-purposes?:

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    Can Discovery Put Clients at Cross-purposes?

    Taking an existing client's deposition for another client's matter has the potential to put the clients' interests in conflict and thus should be conducted by the lawyer with great caution, if at all.

    Dean R. Dietrich

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    Question

    I am representing a client and need to take the deposition of another of my clients who has background information regarding the claim I am pursuing. Is this okay to do?

    Answer

    Deposing a client for another legal matter is a very challenging ethical dilemma. There are instances when the discovery you are doing on behalf of your client that involves the deposition of another client of yours is really harmless. For example, if the person you are deposing is simply being asked some basic factual questions that are relevant to the matter in which you are involved, this may be something that could be done.

    Dean R. Dietrichcom ddietrich ruderware Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    Unfortunately, things that appear to be very simple and factual in nature can change very quickly during a deposition or other type of discovery proceeding, and you may be called upon to challenge the statements or facts that are being presented by the deponent. This is where trouble arises, and you may have a conflict of interest that does not allow you to proceed with the deposition or discovery demands made upon one of your clients.

    In a 1992 formal opinion from the American Bar Association Committee on Professional Ethics, the committee raised concerns about the situation when a lawyer is conducting discovery or doing a deposition of a current client, based on the lawyer’s obligation to the new client to not have his or her representation “materially limited” by the lawyer’s responsibilities (loyalties) to another client. The committee expressed misgivings as to how the lawyer could maintain his or her loyalty and duty of competent representation to the new client while having loyalties that are due and owing to the current client who is being deposed.

    The committee also expressed concern regarding compliance with Model Rule 1.8(b), which prohibits a lawyer from using information relating to the representation of one client to the disadvantage of that client unless the client gives informed consent. Thus, using information that the lawyer may have about the conduct of the existing client to the detriment of the existing client would adversely affect the representation. In general, the committee concluded that a lawyer could not conduct the deposition of an existing client on behalf of another client because of the potential limitations on the representation owed to each of the clients and decided that it may be best to have a different attorney conduct that deposition if needed.

    It must be noted that there are times when the lawyer is not aware of the need to depose a current client when commencing the representation of another client. It is not unusual for this to arise during the litigation and that a reasonable lawyer could not have predicted this would occur. While such circumstance may cause the lawyer to look with greater scrutiny at the nature and type of information being requested from the existing client in discovery, concerns regarding trial efficiency should not outweigh the concerns over conflict of interests and material limitations on the representation provided to each client.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors org tpierce wisbar Timothy Pierce or org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.