COLUMN > Ethics & the Law
By Mark J. Fucile
As civil litigation has grown more complex, a problem that occurs with increasing frequency is the need to obtain discovery from a non-party that litigation counsel represents in unrelated matters. By the time the need for the discovery arises, the law firm may be deep into the case for the litigation client. The discovery needed may range from a document subpoena to a deposition. In some instances, the non-party client is cooperative, and the information involved is handled informally through in-house counsel. In others, however, the non-party client opposes the discovery outright or wishes to narrow the scope through either adversarial negotiations or in court.11 See, e.g., Anchorage School District v. M.G., 2018 WL 11470067 (D. Alaska Jan. 16, 2018) (unpublished) (law firm client receiving subpoena intervened to oppose production of the documents sought and to disqualify the law firm). Those latter situations effectively pit one client against another and create a potentially disqualifying conflict for the law firm. Although the conflict would be waivable because the matters are unrelated, the non-party client may not be willing to grant a waiver.22 See RPC 1.7 (current client conflicts and waivers). In that difficult circumstance, a possible (albeit imperfect) solution is to bring in an independent lawyer or firm—often referred to as “conflicts counsel”—to handle the discrete discovery involved.33 See generally Ronald D. Rotunda, “Resolving Client Conflicts by Hiring “Conflicts Counsel,” 62 Hastings L.J. 677 (2011) (Rotunda) (discussing the origins and concept of conflicts counsel).
In this column, we’ll look at both the uses and limits on conflicts counsel as a practice management tool.
Before we do, however, three qualifiers are in order.
First, we’ll focus on the use of conflicts counsel to address discovery-based conflicts. Although, in theory, conflicts counsel can be used to cross-examine a trial witness who is a client in an unrelated matter,44 See ABA Formal Op. 92-367 at 8 (1992) (discussing the use of conflicts counsel to cross-examine a trial witness). In a similar vein, conflicts counsel may offer a solution in cases with discrete subparts such as adversary proceedings within a bankruptcy case. See Rotunda, supra, 62 Hastings L.J. at 696-704 (discussing conflicts counsel in bankruptcy proceedings). the simpler logistics of discovery suggest greater practical utility there than at trial.55 A case from the federal court in Seattle put it this way: “[O]nce a trial is underway, bringing in other counsel is no simple matter. Doing so would result in significant delay for everyone involved and possibly increase costs for the clients. Moreover, it would be difficult for new counsel to conduct an effective cross examination without being familiar with the entire case.” In re Cellcyte Genetic Corp. Sec. Litig., 2008 WL 5000156, at *3 (W.D. Wash. Nov. 20, 2008) (unpublished).
Second, given today’s accent on discovery, we’ll focus on civil litigation. That said, conflicts counsel are used occasionally in criminal proceedings to, for example, cross-examine a prosecution witness at trial who the defendant’s lead law firm is representing in an unrelated case.66 See, e.g., State v. Smith, 761 N.W.2d 63, 72 (Iowa 2009) (approving use of conflicts counsel to handle cross-examination of prosecution witness for whom lead defense firm was representing in an unrelated matter).
Third, we’ll focus on current clients for whom the matters involved are unrelated.77 The use of conflicts counsel is not a remedy where a conflict arises between jointly represented clients in the same matter. See, e.g., Bass v. Dollar Tree Stores, Inc., 2008 WL 906496 (N.D. Cal. Apr. 1, 2008) (unpublished) (conflicts counsel not available as a remedy when proposed class counsel also represented adverse management witness in individual claim against same defendant). Conflicts among current clients in the same matter are nonwaivable. See RPC 1.7, cmt. 29 (“Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails.”); see, e.g., In re Carpenter, 160 Wn.2d 16, 155 P.3d 937 (2007) (disciplining lawyer for conflict and failing to withdraw after conflict arose between jointly represented clients). Although there is a theoretical construct under which one of the clients in this scenario agrees in advance to voluntarily become a former client in the event of a conflict and prospectively waives the resulting former client conflict so that a law firm can continue to represent the other client in the same matter, the theoretical construct doesn’t necessarily work in practice. See, e.g., R.O. by and through S.H. v. Medalist Holdings, Inc., 2021 WL 672069 (Wn. App. Feb. 22, 2021) (unpublished) (disqualifying law firm notwithstanding use of the theoretical construct just described). If a former client is subpoenaed and the matter involved is not, using the standard reflected in RPC 1.9(a), “the same or … substantially related” to work the law firm handled earlier for the former client, then ordinarily no former client conflict exists and the law firm is free to proceed on its own with the subpoena.88 See generally Plein v. USAA Casualty Insurance Company, 195 Wn.2d 677, 463 P.3d 728 (2020) (discussing standards for former client conflicts under RPC 1.9(a)). Although less frequent in practice, former client conflicts can also arise under RPC 1.9(c) if, despite the matters involved being unrelated to the work handled for the former client, confidential information the firm retains remains relevant to the new matter. See generally In re Cross, 198 Wn.2d 806, 500 P.3d 958 (2021) (discussing standards for former client conflict under RPC 1.9(c)). Although, in theory, conflicts counsel might be used to, for example, cross-examine a former client when the matters are related under RPC 1.9(a),99 See, e.g., Reese v. Virginia International Terminals, Inc., 2012 WL 13195017 (E.D. Va. Aug. 29, 2012) (unpublished) (approving conflicts counsel to handle cross-examination of peripherally involved former client of lead law firm). the risk of disqualification becomes so acute in that scenario that the conflicts counsel model is usually not a practical solution under those circumstances.1010 See, e.g., Nealy v. Warner-Chappell Music, Inc., 741 F. Supp. 3d 1257, 1260-61 (S.D. Fla. 2024) (rejecting conflicts counsel to handle witness for opposing party who was former client of lead law firm where matters were substantially related).
Uses
Before we wade into the uses of conflicts counsel, we should address one scenario that typically does not call for this potential solution: the “friendly subpoena.” With a “friendly subpoena,” a non-party client to a lawsuit who has relevant documents is cooperative but wants a subpoena so they can say that they are simply responding to a subpoena.1111 See generally D.C. Bar Ethics Op. 380 at 4 (2021) (discussing “friendly subpoenas”). Although a few jurisdictions classify any subpoena to a client as a conflict, most do not.1212 See, e.g., California State Bar Formal Opinion 2011-182 (2011); but see D.C. Bar Ethics Op. 380, supra, at 2 (disagreeing with the California approach); New York City Bar Formal Op. 2017-6 at 3-4 (2017) (same). This latter position is in keeping with Washington Comment 6 to the current client conflict rule, RPC 1.7, that notes that cross-examining a non-party client in another proceeding “may”—but does not necessarily—create a conflict. The ABA also took this approach in one of the first ethics opinions (in 1992) discussing conflicts counsel.1313 ABA Formal Op. 92-367, supra, at 1. Therefore, absent direct guidance from Washington’s appellate courts, the most practical current landing point in Washington is that a “friendly subpoena” does not ordinarily create a conflict.
If the reception to a subpoena is or is likely to be not-so-friendly, however, conflicts counsel may offer a potential solution. Although circumstances vary,1414 For a broad survey of cases in this area, see the website Freivogel on Conflicts at: www.freivogelonconflicts.com/witnessadversecurrentformerclient.html. a ready example for using conflicts counsel arises from the following generic fact pattern. Law Firm is handling Lawsuit for Client A. Through its investigation, Law Firm learns that Client B—which is not a party to Lawsuit—has relevant documents and/or testimony. Lawsuit is unrelated to any work Law Firm has done for Client B. Client B, however, declines to provide the information voluntarily and also declines to grant Law Firm a conflict waiver to pursue the information through available discovery tools such as a document subpoena or a related deposition (both of which can be enforced, if necessary, on motion and court order). Law Firm instead associates Conflicts Counsel to issue the subpoena and conduct any related deposition. Conflicts Counsel is retained solely to handle these discrete tasks rather than co-counseling Lawsuit as a whole with Law Firm.1515 See, e.g., Wal-Mart Stores, Inc. v. Vidalakis, 2007 WL 4468688 (W.D. Ark. Dec. 17, 2007) (unpublished) (approving conflicts counsel to handle discovery from corporation represented by lead counsel in unrelated matter).
Conflicts counsel weave together two analytical threads.
First, RPC 1.2(c) allows a lawyer to “limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” To return to the preceding example, Law Firm is limiting the scope of its representation by excluding the handling of the subpoena and related deposition while Conflicts Counsel is limiting the scope of its representation to the specific tasks involved. Although Client A’s “informed consent” in this context is not required to be confirmed in writing, prudent practice for both Law Firm and Conflicts Counsel is to memorialize both the explanation to Client A and Client A’s consent in writing.
Second, RPC 1.10(a) addresses the imputation of conflicts within law firms. Under First Small Business Inv. Co. of California v. Intercapital Corporation of Oregon, 108 Wn.2d 324, 330-32, 738 P.2d 263 (1987), conflicts are not generally imputed across law firm co-counsel as long as the law firm with the conflict has not shared confidential information associated with the clients involved with co-counsel.1616 Although First Small Business provides direct guidance in Washington, other jurisdictions have reached similar conclusions through ethics opinions. See, e.g., New York City Bar Formal Op. 2017-6, supra, at 6; New York City Bar Formal Op. 2001-3 at 6-7 (2001). This puts a premium on carefully segregating the work of conflicts counsel, closely compartmentalizing the information shared, and documenting that line in the event that it is challenged later.
Limitations
The practical limitations with conflicts counsel usually coalesce around three factors.
First, although it is often easier said than done, law firms need to reasonably anticipate the need for conflict counsel. While witnesses will sometimes surface well into discovery, many can be forecast from the outset. That, in turn, suggests running conflict checks on adverse witnesses to determine whether there is a conflict. Knowing that there is a potential issue can guide the next steps. For example, if key documents are held by a non-party corporate client, informal discussions between the law firm and in-house corporate counsel can occur to gauge whether the corporate client has any objections and, if so, whether it is amenable to a waiver.1717 See generally D.C. Bar Ethics Op. 380, supra, at 24-25 (surveying preliminary steps in guiding decision on conflicts counsel). The District of Columbia Bar opinion notes that advance waivers are, in theory, a tool to address conflicts in this situation. Id. at 25. On a practical level, however, many law firms either don’t have this kind of provision in their engagement agreements or for business marketing reasons may not wish to include them. Advance waivers are generally permitted in Washington under Comment 22 to RPC 1.7, which is based on its ABA Model Rule counterpart. Advance waivers are discussed in detail in ABA Formal Opinion 05-436 (2005). In other instances, preliminary analysis and informal conversations with the non-party client may lead the law firm to conclude that it should simply decline the new matter involved.1818 See generally Wis. Formal Ethics Op. EF 20-02 at 9 (2020) (“If the lawyer learns sufficiently in advance that she may need to conduct an adverse examination of a current or former client, the most prudent course of action may be to decline the representation.”).
Second, don’t wait until a disqualification motion is filed to think about conflicts counsel. In Cellcyte Genetic Corp. Securities Litigation, 2008 WL 5000156 (W.D. Wash. Nov. 20, 2008) (unpublished), for example, the federal district court in Seattle rejected the use of conflicts counsel because the law firm only raised the possibility in its briefing opposing disqualification without actually having conflicts counsel on board. Similarly, in Anchorage School District v. M.G., 2018 WL 11470067 (D. Alaska Jan. 16, 2018) (unpublished), the federal district court in Anchorage rejected the use of conflicts counsel when a law firm only associated separate counsel to handle third-party discovery after the non-party client objected and had intervened to disqualify the lead law firm.
Third, if the non-party client is too central to the case, the conflicts counsel model will likely not work on a practical level. In FMC Technologies, Inc. v. Edwards, 420 F. Supp.2d 1153, 1162 (W.D. Wash. 2006), for example, the federal district court in Seattle rejected conflicts counsel as a solution where the potential testimony of the non-party involved was central to the entire case. The court in FMC didn’t cite either RPC 1.2(c) or First Small Business, but it got to the same analytical end: An attempt to avoid the conflict by limiting the scope under RPC 1.2(c) was not reasonable under the circumstances and the witness was so central that the lead firm would inevitably have to share the witness’ confidential information with conflicts counsel for the latter to participate effectively.
Summing Up
As noted at the outset, conflicts counsel is an imperfect solution. For law firms that find themselves well into a case and needing to obtain discovery from a non-party that is also a firm client on unrelated matters, however, conflicts counsel can offer a potential solution short of outright withdrawal.
ABOUT THE AUTHOR
Mark J. Fucile of Fucile & Reising LLP handles professional responsibility and risk management for lawyers, law firms, and legal departments throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and has served on the Oregon State Bar Legal Ethics Committee. He is also the editor-in-chief of the WSBA Legal Ethics Deskbook. He can be reached at 503-860-2163 and:
NOTES
1. See, e.g., Anchorage School District v. M.G., 2018 WL 11470067 (D. Alaska Jan. 16, 2018) (unpublished) (law firm client receiving subpoena intervened to oppose production of the documents sought and to disqualify the law firm).
2. See RPC 1.7 (current client conflicts and waivers).
3. See generally Ronald D. Rotunda, “Resolving Client Conflicts by Hiring “Conflicts Counsel,” 62 Hastings L.J. 677 (2011) (Rotunda) (discussing the origins and concept of conflicts counsel).
4. See ABA Formal Op. 92-367 at 8 (1992) (discussing the use of conflicts counsel to cross-examine a trial witness). In a similar vein, conflicts counsel may offer a solution in cases with discrete subparts such as adversary proceedings within a bankruptcy case. See Rotunda, supra, 62 Hastings L.J. at 696-704 (discussing conflicts counsel in bankruptcy proceedings).
5. A case from the federal court in Seattle put it this way: “[O]nce a trial is underway, bringing in other counsel is no simple matter. Doing so would result in significant delay for everyone involved and possibly increase costs for the clients. Moreover, it would be difficult for new counsel to conduct an effective cross examination without being familiar with the entire case.” In re Cellcyte Genetic Corp. Sec. Litig., 2008 WL 5000156, at *3 (W.D. Wash. Nov. 20, 2008) (unpublished).
6. See, e.g., State v. Smith, 761 N.W.2d 63, 72 (Iowa 2009) (approving use of conflicts counsel to handle cross-examination of prosecution witness for whom lead defense firm was representing in an unrelated matter).
7. The use of conflicts counsel is not a remedy where a conflict arises between jointly represented clients in the same matter. See, e.g., Bass v. Dollar Tree Stores, Inc., 2008 WL 906496 (N.D. Cal. Apr. 1, 2008) (unpublished) (conflicts counsel not available as a remedy when proposed class counsel also represented adverse management witness in individual claim against same defendant). Conflicts among current clients in the same matter are nonwaivable. See RPC 1.7, cmt. 29 (“Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails.”); see, e.g., In re Carpenter, 160 Wn.2d 16, 155 P.3d 937 (2007) (disciplining lawyer for conflict and failing to withdraw after conflict arose between jointly represented clients). Although there is a theoretical construct under which one of the clients in this scenario agrees in advance to voluntarily become a former client in the event of a conflict and prospectively waives the resulting former client conflict so that a law firm can continue to represent the other client in the same matter, the theoretical construct doesn’t necessarily work in practice. See, e.g., R.O. by and through S.H. v. Medalist Holdings, Inc., 2021 WL 672069 (Wn. App. Feb. 22, 2021) (unpublished) (disqualifying law firm notwithstanding use of the theoretical construct just described).
8. See generally Plein v. USAA Casualty Insurance Company, 195 Wn.2d 677, 463 P.3d 728 (2020) (discussing standards for former client conflicts under RPC 1.9(a)). Although less frequent in practice, former client conflicts can also arise under RPC 1.9(c) if, despite the matters involved being unrelated to the work handled for the former client, confidential information the firm retains remains relevant to the new matter. See generally In re Cross, 198 Wn.2d 806, 500 P.3d 958 (2021) (discussing standards for former client conflict under RPC 1.9(c)).
9. See, e.g., Reese v. Virginia International Terminals, Inc., 2012 WL 13195017 (E.D. Va. Aug. 29, 2012) (unpublished) (approving conflicts counsel to handle cross-examination of peripherally involved former client of lead law firm).
10. See, e.g., Nealy v. Warner-Chappell Music, Inc., 741 F. Supp. 3d 1257, 1260-61 (S.D. Fla. 2024) (rejecting conflicts counsel to handle witness for opposing party who was former client of lead law firm where matters were substantially related).
11. See generally D.C. Bar Ethics Op. 380 at 4 (2021) (discussing “friendly subpoenas”).
12. See, e.g., California State Bar Formal Opinion 2011-182 (2011); but see D.C. Bar Ethics Op. 380, supra, at 2 (disagreeing with the California approach); New York City Bar Formal Op. 2017-6 at 3-4 (2017) (same).
13. ABA Formal Op. 92-367, supra, at 1.
14. For a broad survey of cases in this area, see the website Freivogel on Conflicts at: www.freivogelonconflicts.com/witnessadversecurrentformerclient.html.
15. See, e.g., Wal-Mart Stores, Inc. v. Vidalakis, 2007 WL 4468688 (W.D. Ark. Dec. 17, 2007) (unpublished) (approving conflicts counsel to handle discovery from corporation represented by lead counsel in unrelated matter).
16. Although First Small Business provides direct guidance in Washington, other jurisdictions have reached similar conclusions through ethics opinions. See, e.g., New York City Bar Formal Op. 2017-6, supra, at 6; New York City Bar Formal Op. 2001-3 at 6-7 (2001).
17. See generally D.C. Bar Ethics Op. 380, supra, at 24-25 (surveying preliminary steps in guiding decision on conflicts counsel). The District of Columbia Bar opinion notes that advance waivers are, in theory, a tool to address conflicts in this situation. Id. at 25. On a practical level, however, many law firms either don’t have this kind of provision in their engagement agreements or for business marketing reasons may not wish to include them. Advance waivers are generally permitted in Washington under Comment 22 to RPC 1.7, which is based on its ABA Model Rule counterpart. Advance waivers are discussed in detail in ABA Formal Opinion 05-436 (2005).
18. See generally Wis. Formal Ethics Op. EF 20-02 at 9 (2020) (“If the lawyer learns sufficiently in advance that she may need to conduct an adverse examination of a current or former client, the most prudent course of action may be to decline the representation.”).