attorney testifying against former client when they sue another former client

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

Full Answer

Can a lawyer represent a former client in a lawsuit?

Client-Lawyer Relationship. (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent …

Can a testifying lawyer be disqualified from representing the client?

 · For example, a disgruntled client sues the lawyer for the typical claims seen between lawyers and their clients: malpractice. The lawyer is permitted to use against the client any material necessary to defend the allegation. Many clients are taken aback at how much can be revealed and most clients don't realize how much is not an attorney-client confidence.

Why did the defendants move to disqualify the Attorney?

 · SCR 20:1.9 of the Wisconsin Supreme Court Rules of Professional Conduct addresses conflicts of interest with a former client. Under this rule, a lawyer may not represent another person "in the same or a substantially related matter" when that person's interests are "materially adverse" to the interests of a former client. As always, this representation can occur …

When does a lawyer have to disclose possibilities to a client?

Answer (1 of 3): The only times I have seen an attorney testify against a former client are when a client’s appeals are denied and the client can file under what is called the Post Conviction …

What is attorney-client confidentiality?

Attorney-client confidentiality survives the death of both the attorney and the client. However, your question's structure seems to indicate the disbarred attorney is in a case where he is a party and is in a defensive posture. He can divulge confidences to the extent necessary to defend himself...

Can a lawyer reveal private information?

Mr. Scherr and Mr. Pont are correct, with one possible exception: if you sue the lawyer, the lawyer may be permitted to reveal private communications to the extent necessary to defend against your allegations. In all other circumstances, if the lawyer breached the attorney client privilege and revealed any information without your express waiver of the privilege, no court would permit any other party, including the government, to use the information against you.

Can a lawyer represent a former client?

Under this rule, a lawyer may not represent another person " in the same or a substantially related matter" when that person's interests are " materially adverse" to the interests of a former client. As always, this representation can occur if the former client consents in writing after consultation to allowing the lawyer to represent another person in a matter against the former client.

Can a lawyer represent a business person in divorce?

Court cases throughout the country differ on whether a lawyer representing a business person is precluded from representing that person's spouse in a divorce proceeding. Recent decisions have allowed such representation, provided the information learned by the lawyer in the prior representation of the business person is information that generally would be discoverable or disclosed during the divorce proceedings.

What happens if a lawyer divulges information to a client?

Otherwise, if they divulge any information given in legal confidence by a client, even when that client is no longer their client, they will and should be sanctioned by the bar association’s board of professional ethics, lose their license for a violation of those professional ethics, and possibly be prosecuted for such an unprofessional action. And that is all BEFORE getting sued into bankruptcy by their ex-client.

When the client claims that his counsel was ineffective, he waives the privileged information the attorney might have?

When the client claims that his counsel was ineffective he waives the privileged information the attorney might have, but only to the extent necessary for the attorney to defend against the claim of ineffectiveness.

Why do judges demand a criminal defense case?

The judges and prosecutors not only expect it, but demand it, because that is the only way to insure that the case doesn’t come back for re-trial after an appeal or motion for post-conviction relief. Also, because they believe in our criminal justice system and Constitution. They know this is the only way that it can work so that everyone gets a fair trial.

What is the conclusion of a police investigation?

The conclusion of a police investigation is the ‘charge sheet.’ The prosecution builds their case on this. The defence also builds their defence strategy around this charge sheet. The defence may suggest a version different from that put forward by the police/prosecution, thus raising a doubt in the mind of the Judge. At the end, the defence argues that the prosecution has miserably failed to prove the case.

Why does a murder case fail?

The case will fail if the state could not present sufficient evidence linking the person to the murder. Mostly the Advocate defending a murderer only raises a doubt as to the guilt of a person by challenging the witnesses of the prosecution, the medical evidence and the circumstances.

What is the burden of proof in a murder case?

In criminal cases, it is the duty of the prosecution or the state to prove beyond doubt that a murder has been committed. This is called the ‘burden of proof.’ The accused has no burden to prove his innocence and therefore, in most cases an Advocate defending a murderer need not present any evidence leave alone false evidence. Only if there is a defence, lets say like alibi, would the defence need to present evidence.

What is an advocate?

An Advocate, apart from being duty bound to accept the brief of a murderer, is also duty bound to uphold the interest of his client. Any communication between a client and an Advocate is covered by privilege. A lawyer cannot disclose what his client told him and no court or police officer can ask an Advocate to disclose a communication made by his client.

Who was Mack's initial legal counsel?

Timothy Hilley, Mack’s initial legal counsel, testified in a closed courtroom that Mack had posed a hypothetical to him at the end of a jailhouse interview, and Hilley viewed it as a veiled statement of intent to commit murder. Mack allegedly asked his then defense counsel what would happen if a witness was unavailable for the trial, a question Hilley took to refer to a witness to the July shooting death of 24-year-old Tavish Greene, the victim in the murder Mack was charged with.

Why did Darryl Mack go to prison?

From Panama City, Florida comes this rare legal ethics scenario. Darryl Mack, 22, accepted 20 years of prison in exchange for a no contest plea to a murder charge , after he learned that his original attorney in the case would be testifying for the prosecution. The revelation by an accused criminal’s own lawyer of what most think are privileged statements would be devastating evidence, which is why lawyers are almost always prohibited by the ethics rules from doing this. Mack had been trying to block the testimony on that basis. However, Circuit Court Judge James Fensom ruled those statements could be used against Mack at trial. Why? It is because of a useful and necessary exception to the ethics rules known as the crime-fraud exception.

Is it ethical to rat out a lawyer?

Sometimes, though rarely, it is ethical for a lawyer to rat out his client. This was one of those times.

Who represented the prosecution witness in the case of Frisco?

In Frisco, the criminal defense lawyer had represented the prosecution witness, Mangeris, against charges of manufacturing and conspiring with a third person over a three-day period to manufacture and distribute methamphetamine.

What did Mangeris testify against?

As part of his grand jury testimony, Mangeris testified against Frisco about crimes unrelated to the charges against Mangeris, but also involving the distribution of methamphetamine. Moreover, Mangeris testified that he supplied Frisco with product, methamphetamine, and to pay Mangeris, Frisco supplied the funds used to obtain Mangeris’s release bond. (There was no allegation that Mangeris’s lawyer knew anything of the arrangement.)

Why was the lawyer's representation of Frisco substantially related to the lawyer's representation of Mangeris?

The trial court found that the lawyer’s representation of Frisco was substantially related to the lawyer’s representation of Mangeris because both representations involved controlled substances and because of the “facts and circumstances” that would be at issue in Frisco’s case. Frisco filed a C.A.R. 21 petition.

Who supplied Frisco with meth?

Moreover, Mangeris testified that he supplied Frisco with product, methamphetamine, and to pay Mangeris, Frisco supplied the funds used to obtain Mangeris ’s release bond. (There was no allegation that Mangeris’s lawyer knew anything of the arrangement.) A grand jury indicted Frisco on numerous charges.

What happened to Mangeris' bond?

The lawyer’s representation largely consisted of arranging for Mangeris’s continued release on bond. When Mangeris failed to appear at a hearing, his bond was revoked and he was arrested. At that point, other defense counsel began representing Mangeris and the first lawyer withdrew.

What is the Supreme Court case People v. Frisco?

In People v. Frisco, 119 P.3d 1093 (Colo. 2005), the Colorado Supreme Court analyzed the issue of what facts a trial court must consider when determining whether there was a “substantial relationship” between a criminal defense lawyer’s representation of a former client and the lawyer’s representation of a current client when the former client was a prosecution witness against the current client.

Is there a substantial risk that the representation of the present client will involve the use of the information acquired in the

there is the substantial risk that the representation of the present client will involve the use of the information acquired in the course of representing the former client, unless that information has become generally known.

What is the justification for the attorney's testimony rule?

Many courts have recognized that "the only justification for the attorney testimony rule that might be viewed as affecting the rights of the opposing party is that derived from the fear that the jury will either accord such testimony undue weight, or will be unable to distinguish between the attorney's testimony, offered under oath, and his legal argument, offered in rhetorical support of his client's case." Crowe v. Smith, 151 F.3d 217, 233-34 (5th Cir. 1998); People v. Superior Ct. of San Luis Obispo County, 84 Cal. App. 3d 491, 501, 148 Cal. Rptr. 704 (1978).

When does a tribunal have proper objection?

1. In particular, " [t]he tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness ," and the opposing party has such an objection "where the combination of roles may prejudice that party's rights in the litigation.". Id. § 3.7 cmt. 2.

Can an attorney testify in a summary judgment?

The question thus arises regarding the extent to which an attorney may "testify" in an affidavit or declaration relating to a motion for summary judgment. It is well established that an attorney's affidavit can be used, in connection with a summary judgment motion, for the simple purpose of placing documents produced in discovery before the court. See, e.g., United States v. Letscher, 83 F. Supp. 2d 367, 381 (S.D.N.Y. 1999) (" [I]t is usual for counsel to put documents before the Court on summary judgment motions as enclosures to counsel's affidavit."); Bank One Lima, N.A. v. Altenburger, 84 Ohio App. 3d 250, 253, 616 N.E.2d 954, 955 (1992) (attorney did not violate the attorney testimony rule by submitting affidavit stating only that documents attached to it were received by him from opposing counsel, and identifying expert witnesses).

Who is Lee Dunham?

Lee Dunham, Senior Attorney, National Legal Research Group. Model Rules of Professional Conduct Rule 3.7 contains the well-known prohibition on lawyer testimony known as the "Lawyer as Witness Rule" or the "Attorney Testimony Rule.". It provides:

Can a judge be unfairly influenced by a lawyer's dual roles?

It is equally unlikely that a judge, as compared to a jury , will be unfairly influenced by the lawyer's dual roles."). Some courts have held that the attorney testimony rule applies to affidavits as well as testimony at trial.

Who shall not thereafter represent another person in a matter adverse to the former client?

(a) Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client:

What is the third situation where representation adverse to a former client is prohibited?

4A. The third situation where representation adverse to a former client is prohibited is where the representation involves the same or a substantially related matter. The "same" matter aspect of this prohibition prevents a lawyer from switching sides and representing a party whose interests are adverse to a person who sought in good faith to retain the lawyer. It can apply even if the lawyer declined the representation before the client had disclosed any confidential information. This aspect of the prohibition includes, but is somewhat broader than, that contained in paragraph (a) (1) of this Rule. The "substantially related" aspect, on the other hand, has a different focus. Although that term is not defined in the Rule, it primarily involves situations where a lawyer could have acquired confidential information concerning a prior client that could be used either to that prior client's disadvantage or for the advantage of the lawyer's current client or some other person. It thus largely overlaps the prohibition contained in paragraph (a) (2) of this Rule.

Can a lawyer represent a client against a former client?

3. Although paragraph (a) does not absolutely prohibit a lawyer from representing a client against a former client, it does provide that the latter representation is improper if any of three circumstances exists, except with prior consent. The first circumstance is that the lawyer may not represent a client who questions the validity of the lawyer's services or work product for the former client. Thus, for example, a lawyer who drew a will leaving a substantial portion of the testator's property to a designated beneficiary would violate paragraph (a) by representing the testators heirs at law in an action seeking to overturn the will.

What is the rule for a lawyer who is prohibited from representing a client?

Whether a lawyer, or that lawyers present or former firm, is prohibited from representing a client in a matter by reason of the lawyers successive government and private employment is governed by Rule 1.10 rather than by this Rule. 2. Paragraph (a) concerns the situation where a lawyer once personally represented a client ...

Is a lawyer subject to discipline?

A lawyer is not subject to discipline under Rule 1.05 (b) (1), (3), or (4), however, unless the protected information is actually used. Likewise, a lawyer is not subject to discipline under this Rule unless the new representation by the lawyer in reasonable probability would result in a violation of those provisions. 9.

What happens when a lawyer is called as a witness?

The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. If there is a conflict of interest, the lawyer must secure the client's informed consent, confirmed in writing.

When is a tribunal proper objection?

[2] The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

What is the difference between an advocate and a witness?

A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

What is the role of advocate and witness?

[1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.

Is the tribunal likely to be misled?

Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses.

What happens if a client commits a crime with an attorney as a victim?

If the client commits a crime with the attorney as a victim, the attorney-client privilege is deemed to be waived to the extent it is necessary for the attorney to establish their claims and defenses.

What happens if a client threatens to kill their attorney?

For instance, if the client threatens to kill their attorney, the attorney can inform the police and file for a restraining order, the same as any other victim.

Do witnesses want to pet a weasel?

Witnesses always want to get up on the stand and wax eloquent about their pet weasel. They will pull that thing out of its cage, hold it up for all to see, and pet that weasel all day long if you let them.

Does testimony equate to spilling secrets?

Regardless, a lawyer has an ethical obligation to maintain client confidences to the extent possible, which means that testimony does not equate with spilling secrets. This is true even in the criminal context when a client files a motion to reopen a case and reverse a conviction based on ineffective assistance of counsel.

When does attorney-client privilege not apply?

Attorney-client privilege does not apply when the information is relevant to a dispute between the attorney and client.

Is attorney client privilege an incapacity privilege?

First — Attorney-client privilege is a communications privilege, not an incapacity privilege.

Can an attorney testify about a client's case?

Yes, they can. Attorneys may reveal confidential client information under certain circumstances. Let’s say the client is suing the attorney for malpractice. The client may reveal confidential information as necessary to defend the claim. If the attorney sues the client because the client failed to pay a bill, the attorney may testify as to confidential information as is necessary to prove the case.