Earlier this year, the Alaska Bar Association issued an ethics opinion surveying a recurring issue for litigators: Should you represent a witness in the same case in which you are representing a party? Although framed by the Alaska RPCs, the Alaska Bar Ethics Opinion 2020-01 draws from authority nationally and offers a useful summary of the potential risks involved. Its conclusion is also consistent with a similar, albeit somewhat dated, Washington advisory opinion from 1994, Advisory Opinion 1569.
The Alaska opinion, like its earlier Washington counterpart, acknowledges that, in theory, one law firm can represent both a party and fact witnesses if their respective positions are fully aligned. Again like its Washington counterpart, the Alaska opinion then focuses primarily on the potentially disqualifying conflict that can occur if a represented witness’ testimony turns out to be adverse to the party the lawyer is also representing. In that event, the lawyer will have a multiple-client conflict under Alaska RPC 1.7(a)(1). Because the conflict is in the same matter, it is not waivable. In light of the conflict, the lawyer (and the lawyer’s firm) would need to withdraw altogether or face potential disqualification. The Alaska opinion’s analysis and conclusions on these points track WSBA Advisory Opinion 1569.
Witness-related issues have also surfaced in Washington litigation. Newman v. Highland School District No. 203, 186 Wn.2d 769, 381 P.3d 1188 (2016), for example, addressed privilege for represented and non-represented fact witnesses. In doing so, Newman was painted against the backdrop of a group of the defendant’s current and former employees who had been represented at their depositions by the same law firm representing the defendant. Similarly, in FMC Technologies, Inc. v. Edwards, 420 F. Supp.2d 1153 (W.D. Wash. 2006), the defendant’s law firm was disqualified because it had earlier represented plaintiffs’ key fact witness in related litigation.
The lesson of both the recent Alaska opinion and its earlier Washington counterpart is that lawyers—and their clients—need to carefully weigh the potential disqualification risk along with what may appear initially to be the cost-saving benefits of having the same law firm represent both a party and fact witnesses.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
