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Commonwealth of Massachusetts

April 2004


John W. Marshall, Assistant Bar Counsel

Have you ever represented a client in a case only to find that a proposed witness for your opponent is someone you have had dealings with? A client or former client? An expert you use in other cases? An in-law? These situations can create thorny conflict-of-interest problems under Rules 1.7 and 1.9 of the Massachusetts Rules of Professional Conduct. You may need to react quickly in order to protect your client’s interests. It is a particularly troubling area in which there are seldom easy answers.

The main conflicts problem that can be created by an opposing witness involves your need to cross-examine the witness at trial. As in other areas of advocacy, your obligation is to use independent judgment in conducting a cross-examination designed to further your client’s interests in the case. Assume that the witness’s direct testimony has seriously undermined your client’s case and that a vigorous cross-examination attacking the witness’s credibility is required.

What would happen to your home life if you did that to an in-law? Would a vigorous attack on an expert you use dampen his or her interest in working with you on other cases? Your natural reaction might be to tone down the cross-examination of either witness, and that is a conflict—your personal interest in maintaining domestic tranquility or in being able to take on similar cases clashes with your obligation to represent your client. As Rule 1.7(b) states, “[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests. . . .”

Or, assume that the witness in need of credibility-crushing cross is a client or former client on whom you have a lot of information that will put the witness in a bad light. While some of this information, such as a criminal record, may be publicly accessible, you have an advantage over other lawyers because the information is in your files and at your fingertips.

The problem is that it is at your fingertips because of your representation of the witness and therefore you can’t use it!. You must maintain as confidential virtually all information concerning a representation under Rule 1.6(a). Rule 1.9(c) also prohibits you from revealing or using a former client’s confidences to his or her disadvantage or for the advantage of anyone else. Cross-examination of your current or former client presents a conflict under Rule 1.7(b)—this time between your obligation to maintain the confidentiality of one client’s dirty laundry and your obligation to another client to hang that laundry in front of the jury.

These conflict issues frequently arise in defending criminal cases. The defendant’s right to the effective assistance of counsel includes the right to counsel free of any disabling conflicts. In Commonwealth v. Boateng, 438 Mass. 498, 509-512 (2003), the attorney defending a murder charge represented the medical examiner in an unrelated civil case. The S.J.C. rejected the defendant’s claim that the dual representation denied him the effective assistance of counsel because the dual representation did not present an “actual conflict”. The court noted that the medical examiner’s testimony was peripheral to the defense and in some ways supported an insanity defense. The court also concluded that the defendant had knowingly waived the conflict.

However, in Commonwealth v. Hodge, 386 Mass. 165 (1982), the S.J.C. reversed a murder conviction because of a similar conflict. A partner of the defendant’s attorney represented a prosecution witness in an unrelated civil matter. The witness presented testimony that contradicted the defendant’s claim of self-defense. The court described the conflict as between the attorney’s “financial interest in not antagonizing his firm’s client by a vigorous cross-examination designed to discredit him, and his duty to consider only Hodge’s best interests in deciding whether and how to cross-examine” the witness. Id. at 168.

The issue can also arise in a civil case. In Hernandez v. Paicius, 109 Cal.App.4th 452 (2003), the court reversed and remanded a defense judgment in a medical malpractice case in part because defense counsel had vigorously cross-examined a client of her firm. Shortly before trial, plaintiff’s counsel learned that his expert was represented on a number of malpractice and disciplinary matters by another attorney in defense counsel’s firm. After the trial court denied a motion in limine to exclude evidence of the charges, defense counsel conducted a vigorous cross-examination that the court of appeal described as “skewering her own client on the witness stand in the interest of defending another client.” Id. at 467. The court held that the trial court should have granted the plaintiff’s motion for a mistrial, concluding that defense counsel “demonstrated a dulled sensitivity to professional ethics and engaged in an egregious and shocking breach of her duty of loyalty to” the witness. Id. at 466.

What can you do when faced with a blossoming conflict with an opposing witness? Under Rule 1.7(b), you could continue with the representation if the affected clients consent after consultation. This is a dangerous route in the context of a trial, where the need for zealous representation is heightened, particularly if the witness’s testimony will be substantially unfavorable to your client’s case. In such circumstances, it is unlikely that the client would ever consent to be represented by you if you might not want to discredit a harmful opposing witness. If the witness is a current or former client, why would that person consent to your use of his or her confidences in open court in an attempt to destroy his or her credibility? If you decide to attempt to obtain consent, much care needs to be given to fully apprise the affected clients of the risks.

Ultimately, in many situations the only solution may be withdrawal. This itself can be problematic. In U.S. v. Oberoi, 331 F.3d 44 (2d Cir. 2003), the defendant’s public defender learned that a client of another lawyer in the public defender’s office would testify against the defendant. The court appointed another lawyer for the witness. When the witness through new counsel consented to the defendant’s lawyer’s use of his confidences in cross-examination, the court refused the lawyer’s request to withdraw.

The public defender’s office took an interlocutory appeal, and the circuit court reversed and ordered the appointment of new counsel for the defendant. The court acknowledged that the lawyer could have continued the representation without risking the reversal of a conviction because of the witness’s consent. The lawyer, however, believed that he could not ethically disclose confidences in cross-examining a client or former client even with consent, and the court accepted that as a reasonable concern. The court noted that ethical rules establish minimum standards of conduct and that attorneys may reasonably maintain higher standards—“an attorney who expresses ethical reservations about cross-examining a former client using his secrets and confidences, even with client consent, acts in the highest tradition of the profession.” Id. at 51.

To bring the issue back home, in Commonwealth v. Goldman, 395 Mass. 495 (1985), the S.J.C. grappled with similar conflict and withdrawal issues. The defendant was charged with conspiracy to murder Glenn. Previously Glenn had attempted to murder Shorter, allegedly at the defendant’s request. When Glenn’s attempt to kill Shorter failed, the defendant allegedly hired another person to kill Glenn. The defendant’s lawyer had consulted with Glenn when Glenn had been indicted for the attempt to murder Shorter. Although the lawyer did not represent Glenn, he had received confidential information concerning Glenn’s dealings with the defendant.

When it became clear that Glenn would testify against the defendant, the defendant’s lawyer moved for instructions from the trial court concerning his continued representation. Glenn’s expected testimony against the defendant was “diametrically opposed” to Glenn’s previous statements to the defendant’s lawyer. The trial court reported various questions to the S.J.C. The court ruled that the defendant’s lawyer was ethically required to keep confidential Glenn’s statements to him and therefore had a conflict of interest between his obligation of confidentiality to his former client and his obligation to his current client to cross-examine the former client and attack his credibility. The court acknowledged that the current client could knowingly waive this conflict but that the trial court had discretion “in a rare instance” (Id. at 508) to override the waiver and require the withdrawal of counsel in the interests of justice.

The prospect of cross-examining someone who presents conflict issues is probably a very rare circumstance. You can guard against it by early and thorough investigation of all the circumstances and people involved in a client’s claim. But when the problem arises unexpectedly at the last minute, it will be crucial for you to recognize the problem, analyze the interests involved and measure their impact on your ability to provide your client with independent judgment. If you believe that you will be impaired, you should discuss the problem with your client. Especially when the problem involves an opposing witness who is a former client, you should consider withdrawal and raise the issue with the trial court. While this route can create serious scheduling problems for the court and cost your client his or her lawyer of choice, it may be the only way to avoid an impossible conflict of interest and the disclosure of client confidences.

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