TOURING DEPOSITION CONFLICTS BY RAIL DOUGLAS R. RICHMOND* I.
INTRODUCTION ............................................................................. 82 THE PRELUDE TO YANEZ .............................................................. 83 III. THE YANEZ CASE ........................................................................... 85 IV . A LL A BOARD .................................................................................... 88 V. N EX T STOP ................................................................................... 91 VI. WELCOME THE NEW RIDER .......................................................... 93 VII. AMBER AND RED SIGNALS .......................................................... 95 V III. C ON CLU SION .................................................................................. 100
II.
ABSTRACT
Employees of organizational litigants are often important fact witnesses in a case even though they are not parties to the litigation. As a result, an adversary may want to depose the employees. The lawyer for the organization commonly produces the employees for their depositions. In doing so, does the lawyer share an attorney-client relationship with the employees? In most cases the answer to this question is no; a lawyer's representation of an organization does not imply representation of its employees. But, a lawyer may assume an attorney-client relationship with an employee or an attorney-client relationship may arise as a matter of fact. In either instance, the lawyer may be presented with a conflict of interest on which a disqualification motion or ethics complaint may be based, or on which a breach of fiduciary duty or legal malpractice claim may be premised. This Article uses a recent case to illustrate the conflicts of interest that may arise where lawyers represent non-party witnesses in depositions, and to explain lawyers' options for avoiding related professional responsibility and liability risks.
* Managing Director, Aon Professional Services, Overland Park, Kansas. J.D., University of Kansas; M.Ed., University of Nebraska; B.S., Fort Hays State University. Opinions expressed here are solely those of the author.