Representing witnesses of current family court clients

Posted Sunday, March 5th, 2017 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Rules of Professional (Lawyer) Conduct

A few times every year a witness in a current family court case will ask me to represent him or her in a family court matter. Rule 1.7 of the South Carolina Rules of Professional Conduct limits that ability:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

The limitation of subsection a(1) has only been implicated once in my career–and that was because the second client lied to me about how she came to retain me. She was the current girlfriend of the father in a custody modification case in which I represented the mother–had I known that I would never have agreed to that representation. My representation of the second client ended quickly and at trial in the first client’s case part of my strategy involved portraying this second client as an unwholesome influence. Awkward.

In contrast, the limitations of subsection a(2) are frequently implicated in family court cases. The witness-turned-potential-client is often either: 1) the estranged or ex-spouse or co-parent of another child of the opposing party in a custody case or; 2) the estranged paramour of the other spouse in a divorce case. This witness and client begin as allies–both in opposition to the same party and willing to provide each other support. The conflicts of subsection a(2) are rarely initially apparent.

The problem is that family court cases often take a year or two to resolve. If one learns something about the new client that helps the original client’s case but hurts the new client’s case, there’s a conflict: the ability to use this information to assist the original client is inhibited by the duty of loyalty to the new client. If the new client reveals information that helps the original client but that the new client wants to remain confidential, there’s a conflict between the duty of confidentiality to the new client and the duty of loyalty to the original client.

Further the witness who goes from potential client to actual client can change loyalties during that period. The estranged spouse reconciles and now aligns with the opposing party. The ex-spouse or new client/co-parent resolves his or her differences with the opposing party and wants to limit involvement in the original case in order to “keep the peace.” Since the witness client is no longer an actual client the constraints of Rule 1.7 no longer apply, but the constraints of Rule 1.9 (involving duties to former clients) do apply. Further, even when it’s not a professional conduct violation, it is uncomfortable to have a former client as an adverse witness.

Some potential-client witnesses are simply good friends or colleagues of the client. The chance that such witnesses will change loyalties or turn against my initial client during the litigation period are greatly diminished. While the limitations of Rule 1.7(a)(2) likely don’t apply, it is safer to discuss the potential for conflicts with both the client and potential client and have them execute the written consent provided in Rule 1.7(b)(4).

Some attorneys don’t recognize the conflicts of representing current witnesses until the clients come into actual conflict. By that point both representations have been compromised–if only because one or both clients now need to retain new counsel. Where the witness has close ties (through marriage, recent sexual relationship, or co-parenting) with the opposing party, I tend to refer the witness to another attorney and let that attorney know why I am making the referral in the hope that he or she will refer me similar conflicts. The one exception is when the witness is a co-parent and the witness and my client have similar issues with the opposing party–there dual representation can assist in presenting consistent and united advocacy. Even there I get a Rule 1.7(b)(4) consent.

Recently, the estranged spouse of an opposing party to a new custody client asked me to handle her divorce. Both the client and the estranged spouse had very similar complaints about the spouse/co-parent and I could have likely obtained a Rule 1.7(b)(4) consent. Yet I referred the estranged spouse elsewhere. Her relationship with the opposing party was so volatile that I had concerns a conflict between my client and this potential client might emerge immediately. Indeed it did: within a day the estranged spouse tried to retract her affidavit in support of my client, reconciled with her spouse, and then had her spouse leave her. My litigation strategy for the custody client has evolved into one in which I portray his relationship with his now-estranged spouse as unhealthy and damaging to the children. This would be a hard litigation strategy to suggest–let alone implement–if I was representing this estranged spouse in a marital dissolution case.

While I lose some business in avoiding most representation of witnesses of current clients, I hopefully gain some business when other attorneys refer me similar conflicts. Further I avoid the extremely uncomfortable situation in which my representation of one client is limited by my representation of another client.

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