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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3514" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2017/09/Balancing-act-300x300.jpg" alt="" width="300" height="300">What if you&rsquo;re about to initiate&nbsp;litigation on behalf of your client, or you are in the middle of litigation,&nbsp;and you find that a different client you represent in another matter has documents relevant to the case?&nbsp; Can you subpoena the documents from your own client?&nbsp; Can you cross-examine that client at trial?&nbsp;&nbsp; Here is some background and some practical advice.
Current client conflicts
The ABA&rsquo;s Ethics Committee analyzed this recurring scenario 25 years ago in its Formal Opinion 92-367, under the verbose-but-descriptive title &ldquo;Lawyer Examining a Client as an Adverse Witness, or Conducting Third Party Discovery of the Client.&rdquo;
The focus is on <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients.html">Model Rule 1.7</a>, which deals with current-client conflicts.&nbsp; It&nbsp;addresses representations directly adverse to existing clients and also situations where your representation of a client may be &ldquo;materially limited&rdquo; by your duties to another client.
The Committee concluded that cross-examining or directing third-party discovery to an existing client likely would be directly adverse to that client, and would create a disqualifying conflict of interest &mdash;&nbsp;unless both clients consented.&nbsp;&nbsp;The circumstances would likely &ldquo;pit the duty of loyalty to each client against the duty of loyalty to the other,&rdquo; said the Committee.
The possibility of a &ldquo;material limitation&rdquo; on your representation of the litigation client&nbsp;is equally clear.&nbsp; First, you could breach the duty of confidentiality you owe to your client who is the witness or the target of a document subpoena.&nbsp; After all, in these circumstances, by definition, you have information that is relevant to the litigation you are conducting on behalf of the other client.
Second, there is a &ldquo;punch-pulling&rdquo; problem:&nbsp; your interest in keeping the witness-client, or in not inconveniencing that client, may consciously or unconsciously cause you to go easier on that client, conducting a &ldquo;&lsquo;soft&rsquo; or deferential&rdquo; examination or document request, to the possible disadvantage of your litigation client.
The conflict issue is sharpened, of course, by <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule.html">Model Rule 1.10</a>, the imputation rule:&nbsp; if you are disqualified, so are&nbsp;all the other lawyers in your firm, by imputation.
Best practices?
The good news is that this conflict is generally viewed as being subject to the affected clients&rsquo;&nbsp;consent and waiver.&nbsp; But how should you&nbsp;proceed?&nbsp; Regarding the situation presented by third-party discovery against a current client, the experience of my firm and others suggests the following possible steps:
<ul>
<li>Advise the litigation client on whose behalf you want to serve the document subpoena that the target of the subpoena is another firm client in unrelated matters.</li>
<li>Get permission from the litigation client to&nbsp;inform the target of the subpoena about the subpoena and the subject matter of the request.</li>
<li>Determine if the subpoena target will&nbsp;be objecting to the subpoena or attempting to block production&nbsp;of any information called for by&nbsp;the subpoena.</li>
<li>If the answers to that&nbsp;question is &ldquo;no,&rdquo;&nbsp;then there is likely little risk of an actual conflict; but otherwise,&nbsp;there is a conflict that requires a waiver.</li>
</ul>
In the absence of a waiver from each client, or if your litigation client objects at the outset to the exploratory discussion with the subpoena target, you can&rsquo;t proceed.
In that case, the&nbsp; ABA Ethics Committee suggests that, as an alternative to withdrawing (which presents obvious and even acute problems, depending on the stage of the litigation),&nbsp;you might be able to co-counsel with an un-conflicted lawyer who would shoulder the third-party discovery.&nbsp; A New York City Bar Association ethics <a href="http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2001-3-limiting-the-scope-of-an-attorneys-representation-to-avoid-client-conflicts">opinion</a> endorses that&nbsp;course of action.&nbsp; But a California <a href="https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/2011-182%20%5B08-0003%5D%20Final%20Publication-PAW.pdf">opinion</a> questioned whether such co-counsel would be truly independent so as to alleviate the conflict.
The ABA&rsquo;s ETHICSearch has a&nbsp;useful recent&nbsp;<a href="http://4ugifts.co.il/store/index.php?main_page=index&amp;cPath=301_899">article</a> on the ins and outs&nbsp; of this quandary.
Clearly, there is a lot to think about when you are faced with this problem, and as always, you should make sure you know how your own jurisdiction approaches it.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Conducting third-party discovery against a current client?  Tread carefully