Independent Representation: North Carolina’s Rules for Professional Conduct - The Gap They Have Created and the Need for Protection in the Representation of Independent Fact Witnesses

Abstract

You cannot play a game of chess against yourself without constantly considering the move you will make when you turn the board around to play the other side and this obvious scenario demonstrates the lack of independent judgment that exists when an attorney represents both an independent fact witness and a party to an action.An attorney in North Carolina would search high and low for authority requiring opposing counsel to end one, or perhaps both, attorney-client relationships. Neither The North Carolina Rules of Professional Conduct nor any case-law from across the country provide solace for an attorney who is convinced that something is invariably wrong with this dual-representation. That attorney need not search any further. Through an understanding of principles of competent decision-making, as illustrated and applied through the analogous situation of playing chess, it can now be articulated why such multiple representation is not only problematic, but should be explicitly proscribed by an addition to the North Carolina Rules of Professional Conduct. Or, in other words, the searching attorney now has more than the “smell test” to point to when arguing for the impropriety of opposing counsel’s actions.