Most attorneys have been in the position of helping a friend or family member by providing legal advice or even representation in a limited scope.  However, when an attorney-parent undertakes representation of their child in litigation, the Rules of Professional Conduct come into play.  When a parent is a potential witness or has a personal financial stake in the outcome of the litigation, the parent may be disqualified from representation of the child.

The challenges of attorney-witnesses and attorneys representing a friend or family member in litigation is not a new concept.  As an attorney, there is a myriad of potential outcomes to consider when deciding whether or not to represent a friend or family member.  This article highlights one case in which an attorney was disqualified from representing the Plaintiff – his own daughter – in a lawsuit.

In a U.S. District Court case involving claims of medical negligence, the Plaintiff was a young woman being represented by her own father.  The Plaintiff’s father had overseen his daughter’s healthcare treatment and was regularly involved in making decisions regarding his daughter’s care and treatment.  As discovery in the case progressed, it soon became clear that due to the father’s intimate involvement in his daughter’s care, the father would be a material witness at trial.

Pursuant to Fognani v. Young, 115 P.3d 1268 (Colo. 2005), disqualification of counsel can occur after facts have been alleged that demonstrate a potential violation of a rule of professional conduct.  Id. at 1272.  In this case, it was argued that several Rules of Professional Conduct were implicated and would be violated in this situation.  Magistrate Judge Nina Wang agreed and issued an Order disqualifying the Plaintiff’s father from the representation.  Dunn v. Miceli, et al., Civil Action No. 14-cv-03068-MSK-NYW, 2015 U.S. Dist. LEXIS 52786.

In her Order, Magistrate Judge Wang cited Colorado Rules of Professional Conduct 1.7(a)(2) and 3.7(a).  Specifically, Colo. RPC 1.7 addresses Conflicts of Interest with Current Clients.  Colo. RPC 1.7(a)(2) states that a lawyer shall not represent a client “if there is a significant risk that the representation…will be materially limited by the lawyer’s responsibilities to…a third person or by a personal interest of the lawyer.”  See Colo. RPC 1.7(a)(2).  Under Colo. RPC 1.7, in instances where there is a significant risk that a lawyer’s representation of the client will be materially limited, the critical question to ask is what is the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.  2020 Model Rules of Professional Conduct 1.7, cmt. [8].

Colo. RPC 3.7(a) – the “advocate-witness rule” – prohibits an attorney from acting as an advocate at trial in which the attorney “is likely to be a necessary witness” unless the testimony relates to an uncontested issue, relates to the nature and value of legal services rendered, or disqualification of the lawyer would work substantial hardship on the client.  “The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness.”  2020 Model Rules of Professional Conduct 3.7, cmt. [2].  “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.”  Id.  The applicable test for determining whether an attorney is a “necessary witness” is whether the anticipated testimony is “relevant, material and unobtainable elsewhere.”  World Youth Day, Inc. v. Famous Artists Merchandising Exch., Inc., 866 F.Supp. 1297, 1301-02 (D.Colo. 1994).

Notably, Colo. RPC 3.7(a) is a prohibition only against acting as an “advocate at trial” and its purpose is to avoid jury confusion at trial.  It does not automatically require that a lawyer be disqualified from pretrial activities, such as participating in strategy sessions, pretrial hearings, settlement conferences, or motions practice.  World Youth Day, 866 F. Supp. at 1303; Main Events Productions, LLC v. Lacy, 220 F. Supp. 2d 353, 356 (D.N.J. 2002).  In some cases, a court may permit counsel to continue to represent a party in pretrial proceedings, even after disqualification as trial counsel.  Merrill Lynch Bus. Finan. Servs. v. Nudell, 239 F.Supp.2d 1170, 1174 (D.Colo. 2003).  Disqualification from pretrial matters may be appropriate, however, where that activity “includes obtaining evidence which, if admitted at trial, would reveal the attorney’s dual role.” World Youth Day, 866 F. Supp. 1297, 1303.

Applying these Rules to the case, Magistrate Judge Wang found that the Plaintiff’s father was an active participant in seeking treatment for his daughter and had been involved in her treatment for many years.  2015 U.S. Dist. LEXIS 52786 at *19.  Magistrate Judge Wang further found that the presence of Plaintiff’s father throughout the timeline of events relevant to the case, the level of his involvement in his daughter’s care, and his designation as a nonparty at fault in the case established that his testimony was material and non-cumulative. Id. at *20.  The court additionally found that the Plaintiff’s father had an existing and tangible conflict of interest in the representation of his daughter because his credibility as a witness would be tested at deposition and at trial.  Id. at *21.

Ultimately, in this case, Magistrate Judge Wang found that the conflict of interest was so pervasive that Plaintiff’s father was barred from participating in the representation of his daughter at any phase of the litigation. 2015 U.S. Dist. LEXIS 52786 at *22.  The court found that the father’s effectiveness as his daughter’s advocate was “irreparably diminished as a result of his personal investment in the resolution of this lawsuit.”  Id.  Finally, the court found that Plaintiff’s purported inability to retain alternative counsel on the basis of her overwhelmingly poor health simply added to the court’s concern that she may not have been capable at the time she asserted her interests as she perceived them over her interests as seen and articulated by her father.  Id. at *23.  Plaintiff’s father was immediately disqualified from the representation.

The risks associated with representing a friend or family member in litigation face a host of potential drawbacks.  Attorneys considering taking on such clients should consider the risks before deciding to accept representation to ensure they protect both themselves and their client.

The case is Morgan Dunn v. Jane Miceli, M.D. and Eating Recovery Center, L.L.C., Civil Action No. 14-cv-03068-MSK-NYW, U.S. District Court for the District of Colorado.

For more information, please contact Deanne C. McClung or Mary P. Kaluk.