Q: Dear Ethics Lawyer, The name of a client in an unrelated matter is identified as a potential trial witness in litigation by an opposing party. Based on the general description of the nature of her testimony, it appears that she will be a material adverse witness and should be deposed. Would it be a conflict for me to take her deposition in the litigation given that our representation of her is unrelated? What about simply having an informal conversation with her about her anticipated testimony?
A: The Model Rules do not recognize any sort of “friendly adversity.” Deposing a client, or even meeting informally with a client who you expect to be an adverse witness to test or question their testimony is representation of one client against another. “[A] directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit.” Rule 1.6, Comment 6. See also ABA Formal Ethics Op. 92-367 (1992). In addition, you likely also have a Rule 1.7(a)(2) “material limitation” conflict in that it would be very difficult to press your client (in or out of a formal proceeding) in order to discredit, question or undermine her adverse testimony.