Legal Question in Civil Litigation in California

Re: Attorney representation of defendant

Let me see if I got this straight: an attorney is a defendant in a lawsuit, and he represents another party in the suit who will be testifying. Is that right? If the witness is also a party to the suit, she does not need a subpoena to be called to testify. If the defendant-attorney represents either a witness or another party, there is a conflict of interest. In some intances the conflict may be waived between the persons involved.

Re: Attorney representation of defendant

The answer depends upon the facts of the case. Where there is no potential conflict of interest between the lawyer and the other defendant, there is nothing wrong with such representation. This actually happens more often than you might think, since suits are often brought by or against spuses; if one spouse is a lawyer, he or she will often represent the other.

Some conflicts can be waived when all of the conflicted parties are fully aware of the issue and agree to waive the conflict. A lawyer-defendant can sometimes represent other defendants in this situation, but probably not when the client will be required to testify.

Representing a witness is a more dicey proposition, since it would give the attorney some power over the testimony offered against her and might also lead the witness to skew his testimony in the lawyer's favor. More importantly, it would limit the other side's ability to talk to the witness about the case. I suppose this would be allowed when the witness's testimony is about a minor and/or undisputed issue, but otherwise it would usually not be permitted.

Re: Attorney representation of defendant

Certainly, you (or your attorney) may comment on the conflict in closing argument if the witness' credibility is in question. Or, you (or your attorney) could move to exclude the witness' testimony based upon the attorney-defendant's inherent conflict. I don't know if that would work, however.

Re: Attorney representation of defendant

I want to add to my earlier response, since the answers from Mr. Iadvaia and Mr. Cohen may seem hard to reconcile with mine.

In many cases, two (or more) defendants are sued "jointly and severally". This means that they allegedly share the blame for what happened and that either one of them can be made to pay the entire judgment. Often, both defendants will agree that, if they are liable at all, their liability is joint and several. This often happens when a married couple is sued. In such a case there usually would be no conflict, since neither of these defendants has anything to gain by undermining the other. Such cases sometimes present other types of conflicts (e.g., one may want to avoid testifying about a very private matter while another might feel the testimony is critical), but otherwise the attorney defendant would be able to represent the others.

In most cases which don't involve joint and several claims and in which the defendants will be asked to testify, there would be a conflict. In some the conflict would be minor and could be waived by the defendants. I would need more details before I could say how serious the conflict is in a given case.