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The Ethics of Naming Opposing Counsel As a Witness(1)
© 1997 Charles F. Luce, Jr.(2)
All Rights Reserved Worldwide
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         In the zealous representation of a client's cause, a lawyer may be required to obtain discovery from, or call as a witness at trial, an attorney in a law firm representing another party. There is no ethical standard that per se prohibits a lawyer from taking such action. However, subpoenaing, identifying or calling an opponent party's attorney, or a non-advocate attorney in an opponent party's law firm, should not be done cavalierly, and doing so (whether or not combined with a motion to disqualify) solely as a contrivance to disqualify opposing counsel, constitutes a violation of the Colorado Rules of Professional Conduct.(3) As discussed below, the Colorado Supreme Court recently has reaffirmed that opposing counsel may only be subpoenaed upon a showing that opposing counsel's testimony will be actually adverse to his or her client, that the evidence sought to be elicited from the lawyer will likely be admissible at trial under the controlling rules of evidence, and that there is a compelling need for such evidence, which need cannot be satisfied by some other source. Taylor v. Grogan, 900 P.2d 60, 62 (Colo. 1995).

         A lawyer is not prohibited from calling another party's attorney or another member of the party's attorney's firm as a witness, either in discovery or at trial, where such attorney may have unprivileged knowledge relevant to the case or unprivileged knowledge reasonably calculated to lead to the discovery of admissible evidence.

         Frequently the identifying or subpoenaing of an attorney as a witness is accompanied by a motion to disqualify that attorney and the attorney's firm from further participation in the lawsuit. Indeed, the Colorado Supreme Court has held that the act of subpoenaing opposing counsel as a trial witness under certain prescribed circumstances, is deemed the "functional equivalent" of a motion to disqualify. Williams v. District Court, 700 P.2d 549, 555 (Colo. 1985). This admonition, however, must not be read literally.

         The mere subpoenaing or listing of opposing counsel as a witness does not require that the trial court sua sponte conduct a hearing to determine whether the subpoenaed or named counsel must be disqualified. It is the option of the party subpoenaing or listing opposing counsel whether or not to also file a motion to disqualify. However, regardless of whether a motion to disqualify is filed, the subpoenaed or named attorney has a duty to promptly determine whether or not withdrawal is required under the Colorado Rules, and to act appropriately. Taylor v. Grogan, 900 P.2d 60 (Colo. 1995), reversing Grogan v. Taylor, 877 P.2d 1374 (Colo. App. 1993)(4). See Colo. Bar Ass'n Ethics Committee Opinion 78, Disqualification of the Advocate/Witness (Revised June 18, 1994)(5) for a discussion of the considerations in determining whether the subpoenaed or named attorney must withdraw.

         The proliferation of motions to disqualify has led courts to view them with suspicion. See, e.g., Greenbaum-Mountain Mort. Co. v. Pioneer Nat'l Title Ins. Co., 421 F.Supp. 1348, 1354 (D. Colo. 1976) ("We also recognize that counsel can approach the Code and Canon 5 as another arrow in his quiver of trial tactics."). See also J.P. Foley & Co. v. Vanderbilt, 523 F.2d 1357 (2d Cir. 1975).

         Before filing a motion to disqualify, the moving attorney should first make a good faith effort, both through investigation and available discovery, to ascertain the validity of the facts that give rise to the motion. Timeliness in subpoenaing, identifying or listing an opposing counsel or another member of opposing counsel's firm is an important factor in determining whether counsel is genuinely seeking relevant, significant testimony or is merely seeking to disqualify an adversary. What counsel learned or should have learned in the development of the case is important in determining timeliness.

         A motion to disqualify not well supported in law or fact exposes the attorney filing the motion and the attorney's client to various sanctions, apart from the denial of the motion. These may include an award of attorney's fees incurred in connection with opposing the motion against the moving attorney, the client or both. See Colo. R. Civ. P. 11 and Fed. R. Civ. P. 11; Colo. Rev. Stat. 13-17-101 et seq.; Colo. R. Civ. P. 121, Sec 1-15(7) and 28 U.S.C. 1927. See, e.g., Wold v. Minerals Engineering Co., 575 F.Supp. 166 (D. Colo. 1985) (imposing Rule 11 sanctions against law firm filing motion to disqualify). Such conduct can also violate the Colorado Rules. Colorado Rule 3.1 (Meritorious Claims and Contentions).

         The use of the subpoena power solely as a contrivance to disqualify opposing counsel also constitutes unprofessional conduct prejudicial to the administration of justice in violation of Colorado Rule 8.4(d). Williams, 700 P.2d at 554 (construing the prior Colorado Code of Professional Responsibility (the "Code)). The assertion of a position merely to harass or maliciously injure another, and knowingly advancing a claim unwarranted under existing law, further violates Colorado Rule 3.1. Although, in practice, meritless motions to disqualify are summarily resolved by denial of the motion, with or without an award of sanctions, see generally Wolfram, Modern Legal Ethics 7.5.12, at 375 (1986), a frivolous motion constitutes independent grounds for attorney discipline. See Colo. R. Civ. P. 241.6(1) and (2).

         The clearest admonition by the Colorado Supreme Court regarding the potential ethical impropriety of calling an adverse party's counsel as a witness was made in Williams. Although Williams was a criminal case decided under the Code, Williams was recently explained and extended to civil actions by the Colorado Supreme Court in Taylor v. Grogan, 900 P.2d 60 (Colo. 1995), decided after enactment of the Colorado Rules. Taylor reaffirms the analytical approach set forth in Williams to be made before deciding to subpoena an opposing party's counsel:

         In Williams v. District Court, 700 P.2d 549, 553 (Colo. 1985), we examined the ethical considerations that "necessarily arise when an attorney of record is subpoenaed by opposing counsel in order to testify against the subpoenaed attorney's client in a pending trial." We concluded that an attorney may subpoena opposing counsel to testify adversely to his client only after showing:

         (1) that [opposing counsel's] testimony will be actually adverse to [his or her client]; (2) that the evidence sought to be elicited from the lawyer will likely be admissible at trial under the controlling rules of evidence; and (3) that there is a compelling need for such evidence, which need cannot be satisfied by some other source.

Williams, 700 P.2d at 555-56 (footnotes omitted).

                 . . . .

         Williams was a criminal case in which the prosecution subpoenaed the attorney of the accused as a prosecution witness. DR 5-102(B) was applicable to both civil and criminal cases. In our view, the Williams factors are equally applicable in the civil context.

         Taylor v. Grogan, 900 P.2d at 62 & n.5.

         In short, although opposing counsel are not per se immunized from discovery or trial subpoenas, and there may be instances where zealous advocacy requires that such testimony be procured, calling the other side's lawyer for tactical reasons, or without meeting the requirements of Williams and Taylor is most likely to injure, rather than aid, the subpoenaing client's cause.

         1. This article is based upon and updates Colorado Bar Association Ethics Opinion 78, of which the author of this article was also the principal author. The contributions of many members of the Ethics Committee to Opinion 78 are gratefully acknowledged. This article, however, represents only the views of the author, and has not been approved or endorsed by the Ethics Committee.

         2. The author gratefully acknowledges the assistance of Moye, Giles, O'Keefe, Vermeire & Gorrell's ace research assistant and librarian, Jenny Winkler, who cite-checked all of the author's materials on but two days notice, with only the slightest complaint when much more was warranted. Thanks, Jen.

         3. Throughout the authors materials reference is made to the Colorado Rules of Professional Conduct, adopted effective 1 January 1993, as "the Colorado Rules," "the Rules," or, when referring to a specific rule, "Rule," or "R.P.C." Reference to the prior Colorado Code of Professional Responsibility is made as "the Code," or "the Colorado Code." Reference to the American Bar Association is often made as "ABA," and to the ABA's Model Rules of Professional Conduct as "the ABA Rules," or "the Model Rules." N.B.: Effective 1 July 1997, the official citation to the Colorado Rules will become "Colo. R.P.C.".

         4. The Court of Appeals had read Williams to literally require that, upon subpoenaing opposing counsel, the trial court must, sua sponte, conduct a disqualification hearing. Over two thoughtful dissents, the Colorado Supreme Court reversed, stating that Williams' focus was on the conduct of the subpoenaing attorney, not the attorney subpoenaed. Left open by Taylor is whether the trial court may, in its discretion, order and conduct a disqualification hearing. The author believes that the inherent oversight powers of the trial court would support an exercise of such discretionary power, but that it is not an abuse of discretion for the trial court to refuse to act absent a motion to disqualify.

         5. The opinions of the Colo. Bar Ass'n Ethics Committee are collected in a publication entitled Colorado Ethics Handbook published by Continuing Legal Education in Colorado, Inc., currently being prepared for republication. Formal Opinions are also published in The Colorado Lawyer, typically within three to six months after approval by the Ethics Committee.

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