Ethics: The Lawyer As A Witness

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Ethics: The Lawyer As A Witness
Irene Bassel Frick
Akerman Senterfitt (Tampa, FL)
813.209.5047 | [email protected]
http://www.akerman.com/bios/bio.asp?id=771
I. Introduction.
A lawyer, both outside and in-house counsel, can be
noticed or subpoenaed to provide deposition or trial
testimony in a number of situations: A) if the lawyer
was involved in an internal investigation or advises
a client regarding a decision or course of conduct
that is later litigated; B) if the lawyer, either in-house
or outside counsel, although more often in-house
counsel, is designated as a corporate representative;
or C) if a subsequent suit is brought at which actions in
a prior suit are relevant, for example, a bad faith suit or
a malpractice action.
In the first scenario, one theory argued to justify the
deposition of a lawyer, even current counsel is the
“unsworn witness” theory which centers on possibility
that a lawyer with personal knowledge of the underlying
facts could, through his demeanor or questioning of
witnesses, improperly suggest the lawyer’s personal
views on a matter, thus providing the equivalent of
unsworn testimony in the case.
II. Application of certain fundamental ethical
responsibilities, when it becomes apparent that a
lawyer will be a witness or testify at deposition or
trial.
In all of the possible scenarios in which a lawyer may
be a witness at trial or deposition, a number of ethical
issues are raised. The following fundamental ethical
responsibilities are implicated:
A. ABA Model Rule 1.6 Confidentiality of Information.
This model rule prohibits a lawyer from disclosing
confidential information relating to the representation
of a client without a waiver or consent, with very
limited exceptions. Confidentiality applies not only to
communications between an attorney and the client
but also to all information “relating to representation.”
The comments to this model rule provide that it is
considered a fundamental principle in the client-
lawyer relationship, in the absence of the client’s
informed consent, that the lawyer must not reveal
information relating to the representation. A client is
therefore encouraged to seek legal assistance and to
communicate fully and frankly with the lawyer even as
to embarrassing or legally damaging subject matter.
The principle of client-lawyer confidentiality is given
effect by related bodies of law: the attorney-client
privilege, the work product doctrine and the rule of
confidentiality established in professional ethics. The
attorney-client privilege and work product doctrine
apply in judicial and other proceedings in which a
lawyer may be called as a witness or otherwise required
to produce evidence concerning a client. The rule of
client-lawyer confidentiality applies in situations other
than those where evidence is sought from the lawyer
through compulsion of law. The confidentiality rule, for
example, applies not only to matters communicated
in confidence by the client but also to all information
relating to the representation, whatever its source.
1. Attorney Client Privilege.
Attorney client privilege will not always shield
discovery of information and communications between
an attorney and client. Generally, a waiver may exist
when the party asserting privilege attempts to rely on
privileged information as a claim or defense.
When giving business advice rather than legal advice,
communications with in-house may not be protected by
the attorney client privilege. In Upjohn v. United States,
449 U.S. 383 (1981), the Supreme Court addressed
whether the attorney-client privilege was applicable
to certain communications between employees of
a corporation and the corporate counsel. The Court
rejected the “control group test,” which protected
communications between attorneys and those
corporate officers playing a significant role in directing
the corporation’s operations, but not that between
attorneys and middle and lower-level employees.
The Court did rule, however, that the attorney-client
privilege should extend to certain communications
between employees and the corporate counsel, where
the communications were made by the employees to
corporate counsel at the direction of management and
for the purpose of securing legal advice from counsel.
2. Work Product Privilege.
Work product privilege does not apply to investigation
in the “ordinary course of business” when not prepared
in anticipation of litigation. Star-Telegram, Inc. v.
Schattman, 784 S.W. 2d 109 (Tex. App. 1990). And
even if this privilege applies, Rule 26 of the Federal
Rules of Civil Procedure allows access to work product
when there is a substantial need of the materials in
preparation of the party’s case and the party is unable
without undue hardship to obtain the substantial
equivalent of the materials by other means. See
Sandra T.E. v. South Berwyn School Dist. 100, 600
F.3d 612 (7th Cir. 2010)(noting distinction between
precautionary documents ‘developed in the ordinary
course of business’ for the ‘remote prospect of litigation’
and documents prepared because some articulable
claim, likely to lead to litigation).
B. ABA Model Rule 1.13. Organization as Client. This
model rule provides that a lawyer employed or retained
by an organization represents the organization,
as distinct from its directors, officers, employees,
shareholders or other constituents. Model Rule 1.13(d)
further requires that if a lawyer knows or reasonably
should know that the organization’s interests are
adverse to those employees with whom the lawyer is
working, the lawyer must explain the identity of the client
he or she represents. A lawyer may jointly represent
an organization and its employees as provided in
Model Rule 1.13(d) provided that the provisions of dual
representation are followed.
This rule is easier to apply in theory than in practice –
sometimes authorized actions can come from several
sources and identifying the authorized representative
of the corporation may be difficult.
III. Ethical rules regarding when a lawyer, or other
members of a law firm, may testify.
A. ABA Model Rule 3.7. Lawyer as Witness. This rule
specifically prohibits lawyers from acting as advocates
at trial at which the lawyer is likely to be a necessary
witness. Exceptions to this rule exist if:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality
and there is no reason to believe that substantial
evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of
legal services rendered in the case; or
(4) disqualification of the lawyer would work substantial
hardship on the client.
A lawyer may act as advocate in a trial in which another
lawyer in the lawyer’s firm is likely to be called as a
witness in some circumstances.
This rule exists because of the dual role of a lawyer
as advocate for his client and witness could create a
conflict if the lawyer’s testimony is at odds with that of
his client and could prejudice the opposing party by
bolstering the lawyer’s testimony for his client because
it becomes an advocate. When it is shown that the
attorney will be an indispensable witness or when
the attorney becomes a central figure in the case,
disqualification is appropriate. Fleitman v. McPherson,
691 So.2d 37 (Fla. 1st DCA1997).
Therefore it may be better practice if a company is
going to make a decision based on the investigation
and advice to allow the client or an independent party
to conduct the investigation and limit the attorney’s role
to providing legal advice.
IV. Propriety of designating a lawyer as a corporate
representative for deposition or trial and inherent
risks associated with such a designation.
A. Will the designation of counsel as a corporate
representative result in a waiver of privilege?
Designating counsel as a corporation’s Rule 30(b)(6)
designee does not automatically waive the attorneyclient privilege or work product doctrine where he or
she is designated to testify as to non-privileged factual
matters. In re Pioneer Hi-Bred Intern., Inc., 238 F.3d
1370, 1376 (Fed. Cir. 2001); Motley v. Marathon Oil
Co., 71 F.3d 1547, 1552 (10th Cir. 1995). Some
jurisdictions have held that as long as the questions
posed and responses given involve purely factual
information and do not reveal the substance of
communication between counsel and client, then there
is no waiver of the attorney-client privilege. See Sony
v. Sondview, 217 F.R.D. 104, 109-110 (D. Conn. 2002)
(stating that when general counsel is designated by a
party as one of its Rule 30(b)(6) witnesses the witness
is required to testify about the business operations
of the corporation to the extent he is knowledgeable
about the operations, irrespective of the fact that
he also serves as legal advisor for the corporation.
Questions posed which elicit purely factual information
that is now in the possession of corporate officials
and do not ask for the substance of communications
between counsel and client are to be answered as the
answers to these inquiries will not be disclosing legal
advice of counsel); Upjohn Co. v. U.S., 449 U.S. 383
(1981) (Since the privilege “does not protect disclosure
of the underlying facts,” counsel’s testimony regarding
these unprotected facts during a 30(b)(6) deposition is
not a disclosure of privileged information, and hence,
not a waiver.); In re Pioneer Hi-Bred Intern., Inc., 238
F.3d 1370, 1376 (Fed. Cir. 2001); U.S. v. Nobles, 422
U.S. 225, 239-40 (1975).
Any traditionally privileged areas such as pure legal
advice and counseling would remain privileged so
long as the corporation is not attempting to defend
itself based upon “advice of counsel,” and is merely
proffering counsel as an individual knowledgeable about
designated factual information and the corporation has
not “through this affirmative act … put the protected
information in-issue by making it relevant to the case.”
Chase Manhattan Bank N.A. v. Drysdale Securities
Corp., 587 F. Supp. 57, 58 (S.D. N.Y. 1984); see also
TIG Ins. Co. v. Yules & Yules, 1999 WL 1029712, at
*1 (S.D. N.Y. 1999)(denying defendant’s motion to
compel plaintiff’s attorney-client communications
because defendant failed to show that plaintiff invoked
the substance of the privileged communication as
a basis for a claim or defense or show that plaintiff’s
claim is of such a nature that “invasion of the privilege
is required to determine the validity of the client’s claim
… and application of the privilege would deprive the
adversary of vital information”).
However, if testifying counsel inadvertently strays into
privileged areas, the witness may be found to have
waived the corporation’s privileges with respect to
the matters testified to because the witness would be
serving in a dual capacity, counsel for the corporation
and corporate representative. See Avery Dennison
Corp. v. UCB Films PLC, 1998 WL 703647 at *6 (holding
that a party’s attorney voluntarily waived the attorneyclient privilege by “straying into testimony regarding
the reasons for withdrawing a reissue application for a
patent.”); Adler v. Wallace Computer Services, Inc., 202
F.R.D. 666, 674-675 (N.D. Ga. 2001)( granting motion
to compel where party designated its vice president and
general counsel as its 30(b)(6) designee and during
his deposition the designee testified about privileged
communications and thereby waived privilege);
Sony Computer Entertainment America, Inc. v. Great
American Ins. Co., et al., 229 F.R.D. 632 (N.D.Cal.
2005) (holding that even though Sony designated inhouse counsel as its 30(b)(6) witness, American Home
could properly inquire as to Sony’s understanding of
its legal obligations under the insurance policy, even if
the answer may indirectly reveal the advice of counsel
received by Sony).
B. Instances found to result in a waiver of privilege.
Some courts have taken a more extreme position on
the designation of counsel as a corporation’s Rule 30(b)
(6) designee and have held that if the corporation calls
counsel to testify to matters that the attorney could only
have learned though the attorney-client relationship
the privilege is waived. See People v. Dubrin, 232 Cal.
App. 2d 674, 680 (2d Dist. 1965); State ex rel. United
Hosp. Ctr., Inc. v. Bedell, 484 S.E.2d 199 (W. Va.
1997); Kammerer v. Western Gear Corp., 96 Wash. 2d
416, 635 P.2d 708, 710 (1981) (“Offering an attorney’s
testimony concerning matters learned in the course of
his employment waives the attorney-client privilege.”).
Parties cannot designate in-house counsel and utilize
the attorney-client privilege as a shield and then
attempt to wield the same privileged communications
as a sword. See U.S. v. Nobles, 422 U.S. 225, 239–
40, 95 S. Ct. 2160, 2170–71, 20 Fed. R. Serv. 2d 547
(1975) (work product privilege applied to report created
by investigator of defense lawyer, but was waived when
defense lawyer made a testimonial use of the report
by calling the investigator to the stand. Respondent
can no more advance the work-product doctrine to
sustain a unilateral testimonial use of work-product
materials than he could elect to testify in his own behalf
and thereafter assert his Fifth Amendment privilege to
resist cross-examination on matters reasonably related
to those brought out in direct examination).
V.
Possible consequences if a lawyer violates
an ethical rule when the lawyer is considered a
necessary witness, or testifies at deposition or
trial.
A. Possible ethical violations resulting in disciplinary
actions.
Many of the ethical rules that are implicated contain
exceptions that allow for the lawyer to seek legal
advice about the lawyer’s compliance with his or her
ethical responsibilities. ABA Model Rule 1.6(b)(4).
Many state bars also have ethics hotlines that may be
useful on issues that are unclear. The lawyers that
respond to questions posed to an ethics hotline have
access to unpublished ethics opinions that may answer
the questions posed. One should also be aware that
judges or other lawyers may report an ethical violation,
not just clients, and even instances in which a client
does not assert a privilege (but also does not waive
a privilege), a lawyer must meet his or her ethical
responsibilities.
B. Waiver of privilege.
As discussed above, one of the most serious risks
when a lawyer is a witness is that a waiver of a privilege
may be found, even inadvertently. This is a calculated
risk when a party designates a lawyer as a corporate
representative, but is an even more serious concern
when an opposing party seeks to depose a lawyer or
designates a lawyer to testify at trial or an evidentiary
proceeding and a lawyer is required to guard his or her
client’s confidential information even where the client
is not vigorously asserting the client’s privilege but has
not waived that privilege.
C. Disqualification.
A lawyer need not withdraw from a case where he or
she might be called to testify by adversary as this would
create situation in which adversary would disassociate
client’s chosen counsel. Hill v. Douglass 248 So.2d
182, 183 (Fla. 1st DCA 1971).
VI. Practical recommendations to mitigate risks
to clients and assure compliance with ethical
obligations.
A. Conducting an investigation or advising on a matter
which may be litigated.
1. If conducting an investigation, obtain a written
request for legal advice in advance.
2. Send confirmation in writing that the purpose
is to render legal advice and/or render services in
anticipation of litigation.
3. Admonish witnesses that interview are subject to
attorney client privilege.
B. Designation of lawyer as corporate representative.
In this scenario, a party must be extremely careful
to limit testimony when certain topics are ultimately
addressed. The designated counsel must not reference
communications received from that are privileged
because such a reference may inadvertently waive
privilege.
C. When designated as a witness in a subsequent legal
action, such as a bad faith claim or a malpractice claim.
1. Even when designated as a witness by the lawyer’s
former client, the lawyer should obtain a written waiver
of privilege if the client is waiving privilege or attempt
to ascertain the information that is sought to determine
whether a privilege applies.
2. If the client designates the lawyer as a witness
but refuses to waive privilege, assert a privilege if a
question may reveal privileged information. The
client, or counsel asking the questions on behalf of the
client, may not be aware that the response will reveal
privileged information.
D. Consider moving for a protective order prior to the
deposition.
The general rule is that “protective orders totally
prohibiting a deposition are rarely granted absent
extraordinary circumstances” and the “Federal Rules of
Civil Procedure do not explicitly prohibit the deposition
of a party’s attorney.” West Peninsular Title Co. v.
Palm Beach County, 132 F.RD. 301, 302 (S.D.Fla.
1990). However in some jurisdictions the deposition
of a party’s attorney call for special scrutiny of this
general rule. Id.
Some jurisdictions follow the Shelton rule as
enunciated by the Eighth Circuit Count of Appeal in
Shelton v. American Motors Corp., 805 F.2d 1323 (8th
Cir. 1986), and place the burden on the party seeking
the deposition of counsel to demonstrate that: (1) the
information sought is relevant and not privileged, (2)
there are no other means to obtain the information,
and (3) the information is critical to the preparation of
the party’s case. These courts fear that the deposition
of an opposing party’s counsel presents a “unique
opportunity for harassment.” Marco Island Partners v.
Oak Development Corp., 117 F.R.D. 418, 420 (N.D.Ill.
1987).
Other jurisdictions place the burden on the party
opposing the deposition to establish good cause for
an order protecting against discovery. Mutual Life Insr.
Co. of New York v. Kaiser, 161 F.R.D. 378 (S.D.Ind.
1994).
About Irene Bassel Frick
Shareholder | Akerman Senterfitt | Tampa, FL
813.209.5047 | [email protected]
http://www.akerman.com/bios/bio.asp?id=771
Irene Bassel Frick is a commercial litigator with trial experience in both state and federal court, arbitration
proceedings, and administrative proceedings. Irene represents clients in all aspects of commercial disputes,
including contractual disputes, fiduciary duty claims, and business torts. In addition to her general commercial
litigation experience, Irene has significant experience representing lenders and financial services clients in defense
of lender liability claims and enforcement of commercial loans and prosecution of commercial foreclosures,
appointments of receivers, bankruptcies and deficiency litigation. Irene also has experience in employee benefits
litigation, including ERISA litigation, and in construction litigation. Within the context of employee benefits, Irene
represents employers, insurers, employee benefit plans, and third party providers. She litigates claims related
to retirement income plans such as ESOP or profit sharing plans and welfare plans, such as life, health, and
disability plans. Within the construction context, Irene regularly represents architects, engineers, and contractors
in preparing and filing claims of lien and/or claims on bond. She also represents developers and owners in
construction disputes, specifically claims for defective construction.
Areas of Experience
• Commercial Mortgage Foreclosures & Receiverships
• Construction Liens, Surety Bonds, Performance Guarantees & Insurance Coverage
• Construction Litigation & Dispute Resolution
• Disability, Medical & Other Leaves
• Distressed Property
• Employee Benefits & ERISA Litigation
• Employee Benefits & Executive Compensation
• ERISA Litigation
• Preference & Fraudulent Transfers Litigation Defense
Awards and Recognition
• Florida Trend’s Legal Elite 2012, Listed as an “Up & Comer”
• Tampa Bay Business Journal 2010, Recognized as an “Up & Comer”
• Martindale-Hubbell, AV Rated
Education / Background
• J.D., University of Florida Levin College of Law, 1998; with honors
• B.A., University of Florida, 1995; Political Science, with honors, National Merit Scholar; Phi Beta
Kappa Scholar
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