Alaska Bar: Be Wary of Taking on Non-Party Witness in Deposition

Lawyers who agree to represent a non-party witness mid-deposition while representing one of the parties have a number of ethical quandaries to consider before agreeing to the representation, the Alaska Bar recently advised.

“Caution and prudence are in order, as many ethical issues are implicated in this situation,” the bar’s Jan. 30 opinion said.

The same factors that apply to representing multiple clients in one matter apply in this setting and can’t be ignored because of the time constraints a deposition may impose, it said.

These include:

• Scope of Representation: The attorney and the witness have to agree on the objectives of the representation and whether it covers only the deposition, the court said. It noted that other jurisdictions, such as New York, are skeptical that a person can be adequately represented on such a limited basis.
• Fees: The lawyer and witness have to agree on fees and have a written agreement if they exceed $1,000, it said.
• Confidentiality of Information: In this scenario, the lawyer has to figure out whether the representation of the witness and original party qualify as separate or joint representation and seek the proper consent from both before agreeing to represent the witness, the court said.
• Conflict of Interest: Conflicts of interest are a “significant issue in this scenario,” the bar opinion said. It’s “critical” to have full disclosure and get informed consent from both the clients, it said. And even if there’s none initially, a conflict may develop later, the opinion warned.

The bar also noted that attorneys are forbidden from soliciting clients for their own financial gain. In the case of a “heated deposition,” for example, the witness may feel overwhelmed and be subject to “undue influence,” it said.

The opinion is Alaska Bar Ass’n Ethics Opinion, No. 2020-01, 1/30/20.