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John Gaal's Ethics Corner
Q: I am in the middle of litigation and I have just learned that one of my firm's business clients is listed as an expert witness by the other side. Does that pose any problems for me?
A: Yes, it does. An attorney owes his or her client an undivided duty of loyalty. That duty is put at risk on two fronts when an attorney finds him- or herself cross-examining an adverse witness who is also a client. First, it pits the attorney against his or her (or the firm's) witness-client, who could reasonably be concerned that a confidence or secret he had imparted to the firm in the course of its representation of him could now be used against him during cross examination. Second, it provides a basis for the attorney's litigation client to question whether he or she will be zealously represented in the cross examination of the expert, or whether the lawyer's pre-existing business relationship with the witness-client will cause the lawyer to “take it easy” in the cross examination.
Formal Opinion 92-367
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