Can a law firm continue as trial counsel when it must call a former associate of the firm as a witness for the client?

Plain-English summary

The Committee was asked whether a firm may represent a client at trial when it must call a former associate of the firm as a witness for the client. In the facts presented, Law Firm A had represented Mr. X and his corporation; a former associate, B, had done corporate work and had been a co-defendant in a customer's fraud suit before all defendants except Mr. X were dismissed. The firm was retained to defend Mr. X at trial and determined it should call former associate B to give helpful, undisputed testimony.

The opinion explained that DR 5-101(B) bars a lawyer from acting as trial counsel when the lawyer will also be called to testify, subject to exceptions none of which fit the facts, so DR 5-101(B) would prohibit associate B himself from serving as Mr. X's trial counsel. DR 5-105(D) provides that when a lawyer must decline employment, no partner or associate or affiliate of that lawyer's firm may accept or continue the employment (citing Aleut Corp. v. McGarvey). The question was whether DR 5-105(D) should be read to disqualify Law Firm A, B's former employer, as well. The opinion concluded it should not.

Drawing on Ethical Considerations 5-9 and 5-10 and ABA Formal Opinion 339, the opinion identified the concerns behind DR 5-101(B): that a lawyer's ability to advocate may be impaired by an interest in the outcome, and that a lawyer should avoid the unseemliness of arguing his own credibility. Those concerns fit an individual lawyer or trial team. The opinion noted that ABA Model Rule 3.7(b) expressly allows a lawyer to act as advocate even though another lawyer in the firm (not acting as trial counsel) will be a witness, provided no conflict of interest results. It concluded that no legitimate ethical consideration is served by extending the DR 5-101(B) prohibition to a situation where a former associate will be called as a witness.

Currency note

This opinion was issued in 1985, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (the opinion applies the former Code of Professional Responsibility while noting the then-new ABA Model Rules) and before the 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could a lawyer who will testify at trial also serve as trial counsel?

A: The opinion concluded that DR 5-101(B) barred a lawyer who will be called as a witness from acting as trial counsel, with limited exceptions that did not apply on the facts.

Q: Did the firm have to withdraw because it would call a former associate as a witness?

A: No. The opinion concluded the firm-wide imputation rule of DR 5-105(D) does not extend the advocate-witness bar to a firm whose only connection to the witness is that he is a former associate.

Q: Why did the imputation rule not disqualify the whole firm?

A: The opinion concluded the concerns behind the advocate-witness bar (an interest in the outcome and arguing one's own credibility) apply to the individual lawyer or trial team, and ABA Model Rule 3.7(b) allows a firm lawyer to advocate even though another firm lawyer will testify, absent a conflict.

Background and rules framework

The opinion applied the former Code's advocate-witness rule (DR 5-101(B)) and the firm-wide imputation rule (DR 5-105(D)), informed by Ethical Considerations 5-9 and 5-10, and compared them with the then-new ABA Model Rule 3.7 (lawyer as witness), which permits a firm lawyer to advocate while another firm lawyer testifies absent a conflict of interest.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 5-101(B) (lawyer as witness) (cf. Model Rule 3.7(a))
• DR 5-105(D) (firm-wide imputation of disqualification)
• EC 5-9, EC 5-10 (concerns behind the advocate-witness rule)
• ABA Model Rule 3.7(b) (advocate may continue though another firm lawyer testifies)

Cases:

• Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska 1978), firm-wide disqualification under DR 5-105(D)

Other opinions cited:

• ABA Formal Opinion 339: purposes of the advocate-witness rule

See also

• Alaska Ethics Op. 86-5: Withdrawal When the Lawyer Is a Witness
• Alaska Ethics Op. 96-5: Attorney Representation Form on Release Agreements
• Alaska Ethics Op. 96-6: Lawyer as Arbitrator and Advocate

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/85-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 85-3
Propriety of Firm Continuing as Trial Counsel when it is Necessary to Call
a Former Associate as a Witness.
The Committee has been asked to determine whether a firm may
represent a client at trial when it is necessary to call a former associate of the
firm as a witness on behalf of the client.
Law Firm A was Mr. X's personal attorney. When Mr. X became president
of Corporation Z, Law Firm A became counsel to the Corporation. Associate B
did work for the Corporation as corporate counsel. A disgruntled customer
sued the Corporation, Mr. X, Associate B, and other corporate officers alleging
that they had fraudulently induced him to purchase the Corporation's product.
All defendants except Mr. X have now been dismissed (by reason of settlement
or bankruptcy). Law Firm A has been retained to represent Mr. X at trial and
has determined that it should call its former Associate B to give testimony
helpful to Mr. X's defense. It is not expected the Associate's testimony will be
disputed.
DR 5-101(B) prohibits a lawyer from acting as trial counsel when the
attorney also will be called to testify at trial, except in certain limited
circumstances. None of the exceptions are applicable to the facts.
DR 5-105(D) states if a lawyer is required to decline employment, then
"no partner, or associate, or affiliate with him or his firm" may accept or
continue employment. See also, Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska
1978).
DR 5-101(B) would prohibit Associate B from representing Mr. X as trial
counsel. The question, therefore, is whether DR 5-105(D) should be read to
mean that Law Firm A, as Associate B's former employer, also is disqualified
from representing Mr. X. The Committee concludes this question should be
answered in the negative.
Ethical Considerations 5-9 and 5-10 and ABA Form Opinion 339 explain
that the primary concerns behind DR 5-101(B) are that a lawyer's ability to act
as advocate for his client is, or may be, impaired by his interest (financial or
otherwise) in the outcome of the case and that a lawyer should avoid the
"unseemliness" of arguing his own credibility.
The Committee believes that the purposes behind DR 5-101(B) are
appropriate when applied to an individual lawyer or team of lawyers acting as
trial counsel. Although DR 5-105(D) requires disqualification of the firm when
any lawyer of the firm is disqualified, the Committee notes that ABA Model
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Rules of Professional Conduct Rule 3.7(b) expressly states that a lawyer may
act as advocate even though another lawyer in his firm (not acting as a trial
counsel) will be called as a witness (provided doing so does not cause a conflict
of interest).
The Committee believes that no legitimate ethical consideration is served
by extending the prohibition of DR 5-101(B) to instances where a former
associate will be called as a witness.
Adopted by the Alaska Bar Association Ethics Committee on August 8, 1985.
Approved by the Board of Governors on August 23, 1985.

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