Barry R. Temkin, Michael Stone, Solicitation by Defense Counsel: Ethical Pitfalls When Corporate Defense Counsel Offers Representation to Witnesses


“The ban on solicitation by attorneys in ABA Model Rule of Professional Conduct 7.3, and its state counterparts, has generally been used to prevent ambulance chasing by plaintiffs’ attorneys. However, a recent New York decision has raised the possibility that a defense lawyer could be disciplined for solicitation when offering his services to a non-party witness employed by a corporate defendant, even when doing so for no additional fee. The court in Rivera v. Lutheran Medical Center, referred a prominent national law firm to the Departmental Disciplinary Committee and disqualified the firm from representing several current and former employees of the law firm’s client, a hospital. The law firm had offered its services to several witnesses in a pending civil employment discrimination matter. The court found this to be solicitation in violation of the New York Code of Professional Responsibility, disqualified the firm, and referred it for disciplinary prosecution.

This decision has been criticized by members of the practicing bar, some of whom had assumed it was appropriate for corporate defense counsel to offer their services to current or former employees or non-party witnesses. Moreover, the Rivera decision sets up a potential conflict with other principles of modern corporate practice. For example, recent authorities have held that a corporation, under some circumstances, is obligated to furnish a free defense to a current or former corporate employee in the context of a criminal investigation. In circumstances in which a corporation is legally obligated to offer a defense to a former or current employee, is a lawyer proscribed from making the phone call to offer her services?”

Mentioned Rule: ABA Model Rule of Professional Conduct 7.3

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