prior client question

[Blackcandt]

We go to court in a few days for custody. The Respondents husband was at one time my attorney's client. He is not representing him at this time. The Respondent is calling him as their witness.

1. Is our attorney allowed to question him? To what extent?

[socrateaser]

>We go to court in a few days for custody. The Respondents
>husband was at one time my attorney's client. He is not
>representing him at this time. The Respondent is calling him
>as their witness.
>
>1. Is our attorney allowed to question him? To what extent?

This is a REALLY weird question, the sort of which I would expect to read on a bar exam. I'm gonna go out on a limb to try to answer this, because it's very gray, and probably deserves some research to see if there's any appellate case law resolving the issue.

The attorney-client privilege is held by the client, and extends to all confidential communications between them. Further, there is the attorney's duty of confidentiality, which extends to all information gained about the client, regardless of source, if it pertains to the purpose of the legal representation.

So, there is the issue of what your attorney can ask the witness, and there is the issue of what the witness can be compelled to answer.

A witness under oath cannot be compelled to answer about priviledged communications, but can be compelled to answer about confidential matters, known to the attorney.

Your attorney cannot ask leading questions which will reveal in the question the contents of a privileged communication or a confidential information. The witness cannot be compelled to answer a question, leading or direct, that reveals a privileged communication, but can be compelled to answer a question that reveals only confidential information.

The problem here is that it is nearly impossible most of the time to distinguish between what is confidential and what is privileged. But, even where the court could make the distinction, your attorney has a separate duty to a former client and to a present client to not permit an actual conflict of interest.

So, in this respect, your attorney's previous representation of the witness, materially limits the ability of the attorney to represent you, therefore, the attorney must not question the witness. Rather, the attorney should withdraw from your representation, or the attorney risks being subject to discipline by the state attorney licensing agency (usually, the state bar association).

Anyway, to summarize, I believe:

1. The attorney cannot reasonably continue to represent you because of the conflict of interest.

2. Assuming the attorney continues the representation, to his peril, then he/she cannot ask questions of the witness that would reveal a confidence or privileged communication concerning the attorney's prior representation of the witness.

3. Even if the attorney asks a question which does not by itself reveal anything confidential or privileged, and even though the client by answering, impliedly waives his/her right to the privilege or confidence, the attorney's asking the question without first telling the witness that the question could reveal privileged or confidential information, violates the attorney's duty of loyalty to the former client.

In short, the attorney really can't question the witness at all, and should withdraw from the case, if a objectively reasonable attorney, in possession of all relevant facts would believe that the attorney could not competently represent the client, considering these restrictions at trial.

There is one possible way around all of this. The attorney should explain the situation to the court, and ask that the court ask the witness if he is prepared to waive his rights to both attorney-client privilege and confidences concerning your attorney's prior representation.

If the witness waives his rights, then your attorney can ask any questions. Otherwise, your attorney must withdraw from the case, or you could later sue him/her for malpractice, and complain to the state attorney disciplinary agency, which could result in the attorney's suspension or disbarrment, depending on the damage caused to your interests.

Very interesting question. Got my brain cells goin'! Thanks.

[Blackcandt]

Not to confuse matters more, but the Respondent and husband have been seperated for 2 months. She had testified to that under oath in her deposition.  Not sure that even matters but I did forget to add it.  Thanks for the advice.

[socrateaser]

>Not to confuse matters more, but the Respondent and husband
>have been seperated for 2 months. She had testified to that
>under oath in her deposition.  Not sure that even matters but
>I did forget to add it.  Thanks for the advice.

Irrelevant.