Defense Tactic of Offering Free Representation to Non-Party Witnesses in Order to Block Access to Those Witnesses

Though I have not personally encountered it yet, there apparently has been a recent proliferation of a defense tactic of offering to represent witnesses at no charge in order to limit the plaintiff attorney’s access to the witnesses.  This may be particularly a problem in medical malpractice cases but it could occur in any type case.  In a recent Georgia case against a nursing home and its CEO, defense counsel contacted witnesses who had been subpoenaed for depositions and offered to represent them at no charge. The defense lawyer then wrote to plaintiff’s counsel stating that he represented the witness so the plaintiff’s attorney could have no further contact with the witness without going through the defense lawyer.  On October 24th, Judge Frank Jordan of the Chattahoochee Judicial Circuit entered an order finding this created a conflict of interest in violation of Rule of Professional Conduct 1.7 and disqualifying the defense lawyer from representing the non-party fact witnesses.  However, the court stopped short of disqualifying the defense firm from participation in the case or precluding the defense from contesting the issues on which those non-party witnesses would testify.  The Butler Wooten firm did a great job of stopping that defense tactic in its tracks.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents.