John Gaal's Ethics Corner

A: Yes, it does. An attorney owes his or her client an undivided duty of loyalty. That duty is put at risk on two fronts when an attorney finds him- or herself cross-examining an adverse witness who is also a client. First, it pits the attorney against his or her (or the firm's) witness-client, who could reasonably be concerned that a confidence or secret he had imparted to the firm in the course of its representation of him could now be used against him during cross examination. Second, it provides a basis for the attorney's litigation client to question whether he or she will be zealously represented in the cross examination of the expert, or whether the lawyer's pre-existing business relationship with the witness-client will cause the lawyer to “take it easy” in the cross examination.