You have asked this Committee's opinion whether a conflict would arise if you were to represent a company (the Company) in matters not involving your client while a principal of the Company testifies as an expert witness in a case against your client. Based on the facts presented in your inquiry, the Committee believes that you may only represent the Company in unrelated matters as long as you are able to represent your client in accordance with the ethical guideline set forth in Rule 1.7(b).
You have advised the Committee of the following facts: You are defending your client in a civil matter in which the plaintiff has asserted a breach of contract and/or warranty claim against the manufacturer of construction materials and the contractor who installed the materials. Apparently as part of its case in chief, the plaintiff has identified as an expert witness a principal of the Company, which removed and replaced the allegedly defective materials.
At a recent industry meeting, the plaintiff's expert witness approached you about representing the Company in certain matters unrelated to the pending litigation against your client. Based on your knowledge of the case, you have concluded that there is virtually no likelihood under any factual or legal theory allowing the Company to be named as a party in the litigation against your client.
From our review of the Rules of Professional Conduct, the Committee believes that Rule 1.7(b) governs your conduct. Rule 1.7(b) provides:
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibility to another client or to a third person, or by the lawyer's own interest, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after full disclosure and consultation....
As the comments to Rule 1.7 indicate, loyalty is the hallmark of a lawyer's relationship with the client, and thus representation can be undermined when a lawyer's self-interest interferes with the consideration, recommendation or execution of appropriate courses of action which are in the client's best interests. An attorney's own self-interest, however, does not automatically conflict with representation of the client. In determining whether the conflict is of sufficient magnitude to require withdrawal, or at least disclosure to the client, a lawyer must ask himself these questions: whether the lawyer's self-interest will interfere with his independent judgment in considering available alternatives, or whether the lawyer's self-interest will foreclose a course of action that otherwise would be pursued.
Your interest in representing the Company cannot materially limit your cross-examination of the Company's principal at trial. Should you find that it does, you would have to withdraw from representation of both the Company as well as your present client, the manufacturer of the materials involved in the present litigation. Absent waiver by both parties, you cannot cure the conflict by dropping one client in favor of the other. If, however, you conclude that your cross-examination will not be materially limited by the simultaneous representation of the Company, you still must disclose the representation to your client even though you believe that it will not adversely affect your client's position in the litigation. In connection with your compliance with Rule l.7b, you must obtain the consent of the future client to disclose his identity and the intended representation to your present client. In the event your future client refuses this permission, then Rule l.7b will bar your representation of him.
Assuming that you decide to represent the Company in matters unrelated to your client's interests, you have also asked the Committee whether Rule 3.4 would require you to disclose to opposing counsel your representation of the Company in such unrelated matters. Rule 3.4 addresses the fairness between opposing counsel in connection with the disclosure, discovery and representation of evidence relevant to a particular case. For example, Rule 3.4 prohibits unlawful obstruction, alteration, destruction, or concealment of evidence; presentation of false evidence; presentation of the lawyer's personal opinion; and attempts to prevent voluntary testimony of relevant information. Accordingly, because the factual scenario presented in your inquiry does not raise any of these evidentiary issues, and any requirement to disclose a conflict must be resolved under Rule 1.7(b), Rule 3.4 does not appear applicable.