The defendant, Jacobs, hired Covington & Burling to devlop factual information and defenses relating to Jacobs’ work for the Tennessee Valley Authority. Among other things, Covington helped identify non-party witnesses who might have factual information regarding the TVA-Jacobs contract. Covington worked with the witnesses to prepare and submit declarations in support of Jacobs’ Motion to Dismiss, asserting derivative sovereign immunity in connection with the claims asserted in the litigation. Presumably the motions were denied, at least in part, and the cases proceeded to discovery.
Prior to the deposition of these witnesses, Covington met with them to review the contents of their declarations, etc. The firm offered to represent these witnesses at their depositions, free of charge. No formal representation agreements or potential conflict waivers were provided or obtained at that time.
Plaintiffs brought a motion to disqualify Covington & Burling from further representation of Jacobs in the litigation. While denying the motion to disqualify, the Court did admonish the firm:
“Plaintiffs cite to Mid-State Aftermarket Body Parts v. MQVP, No.03-733, 2009 WL 1211440 (E.D.Ark. May 4, 2009), to support their position that Covington should be disqualified. While the court in Mid-State ultimately denied a motion to disqualify…, the court highlighted many concerns associated with the practice of doing so. The court pointed out that ‘a lawyer who represents a nonparty witness in litigation in which he represents a party runs the risk that the testimony of one client may contradict the testimony of the other client.’ In that situation, the party ‘he represents may dictate that he impeach the credibility of the nonparty witness, but doing so might violate his duty to the nonparty witness.’ This circumstance ‘might materially limit his ability to fulfill his responsibility to the other client.’”
Pointing to a New York City Bar Association Opinion, Covington argued that the plaintiffs were ignoring more recent guidance on the subject, which suggests that attorneys are ethically permitted to represent non-party witnesses at depositions in a litigation where the attorney also represents a named party. “Jacobs, however, ignores the vast majority of the NYCB Opinion it relies on to support its position. The opinion provides that representing nonparty witnesses in such circumstances is ‘ethically permitted … subject to the following limitations,’ among others: (1) the representation may be a reasonable limited scope representation; (2) the attorney must secure informed consent; (3) if there is a conflict, the attorney must obtain a written consent waiver; (4) the attorney must discuss what will happen should a conflict arise in the future; (5) the attorney must explain issues with confidentiality in the joint representation.” New York City Bar Association, Formal Opinion No. 2016-2 (July 22, 2016). Despite relying on the NYCB Opinion to support that its conduct was ethical, Covington did not actually engage in any of the precautions the NYCB Opinion requires…. Covington takes the position that it was not required to engage in such precautions because there was no actual or potential conflict of interest …. because each witness signed a fact declaration, crafted by Covington, under penalty of perjury, and that during the depositions, each witness ‘unequivocally affirmed the accuracy’ of the declarations and provided ‘substantive testimony that is consistent with Jacobs’ defenses.’ …. First, the Court notes that the NYCB Opinion requires counsel to engage in most of the previously discussed precautions even if there is no conflict. Additionally, based on the record, the Court is not in a position to affirmatively find that there was no potential or actual conflict…. During the depositions, while the nonparty witnesses provided information that supports Jacobs’s defenses, they also provided information to support plaintiffs’ position….”
Covington was therefore publicly admonished.
Adkisson v. Jacobs Engineering, No.13-666, 2016 WL 6534273 (E.D.Tenn. Nov. 1, 2016).