Must a lawyer withdraw from representing a client just because the lawyer expects to be called as a witness by the opposing party?

Plain-English summary

A member acted as attorney for a bank serving as executor of an estate. He had prepared the will but did not witness it. A will contest then developed, with the contestant seeking to revoke the will on the ground that the testator was mentally incompetent. It was suggested that the lawyer should withdraw because he had drafted the will and might be called to testify by the contestant.

The committee concluded he need not withdraw under the circumstances unless he wished to. Canon 19 said a lawyer should avoid testifying in court on behalf of his client, but, as the committee noted from Drinker's treatise, the attorney need not withdraw if he expects to be called by his adversary. One member observed that requiring withdrawal in such circumstances would in effect let the contestant disqualify the executor's attorney, which could defeat the testator's desires. One member took a different view, believing the lawyer should withdraw if it appeared he would be called to present important testimony on a material issue, though even that member felt there was no ethical demand to withdraw if the lawyer anticipated being called merely on technical matters.

Currency note

This opinion was issued in 1964, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 19 of the Canons of Professional Ethics; the lawyer-as-witness rule is now Rule 4-3.7 of the Rules Regulating The Florida Bar (Model Rule 3.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Must the lawyer withdraw because the opponent may call him?

A: No. The committee concluded he need not withdraw simply because he expects to be called to testify by his adversary, unless he chooses to.

Q: Why does it matter who calls the lawyer?

A: The canon's concern was a lawyer testifying on his own client's behalf. The committee noted that requiring withdrawal whenever the adversary might call the lawyer would let an opponent disqualify counsel, potentially defeating the testator's desires.

Q: Did any member disagree?

A: One member would have the lawyer withdraw if he would be called to give important testimony on a material issue, but agreed there was no ethical demand to withdraw if he anticipated testifying only on technical matters.

Background and rules framework

The opinion applied former Canon 19 of the Canons of Professional Ethics, which counseled a lawyer to avoid testifying for his own client. The lawyer-as-witness standard is now Rule 4-3.7 of the Rules Regulating The Florida Bar (Model Rule 3.7). The committee distinguished testimony a lawyer offers for his client from testimony the adversary seeks to compel.

Citations and references

Rules of Professional Conduct:

• Canon 19 [Canons of Professional Ethics; lawyer as witness; see current Rule 4-3.7]

See also

• FL Bar Ethics Op. 66-63: A Partner Representing an Executor When the Lawyer May Testify
• FL Bar Ethics Op. 66-76: A Prior Witness Representing a Client in a Second Case

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-39/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-39.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 64-39
July 9, 1964
Advisory ethics opinions are not binding.
An attorney need not withdraw from representation of a client simply because he expects to be called to testify by his adversary.
Canon: 19
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar states that he acts as attorney for a bank in its capacity as executor of a decedent's estate. He prepared the will in question, but did not act as witness. A will contest has now developed wherein the contestant seeks to revoke the will on the ground that the testator was mentally incompetent. It has been suggested that the lawyer should withdraw from representation of the estate because he drafted the will and may possibly be called to testify in the litigation by the contestant.
It is the opinion of this Committee that he need not withdraw under the circumstances unless he desires to do so. Canon 19 states that a lawyer should avoid testifying in court on behalf of his client. Drinker, Legal Ethics, observes at page 159, however, that the attorney need not withdraw if he expects to be called by his adversary. One member of the Committee points out that if an attorney is required to withdraw under the circumstances described, then the contestant in effect is placed in the position of being able to disqualify the executor's attorney when such action might well defeat the desires of the testator.
One member of the Committee believes that the lawyer should withdraw from the case in the event that it appears he will be called upon to present important testimony on a material issue. The Committeeman holds that view despite the comment of Drinker, above mentioned. This Committeeman feels, however, that if he anticipates being called merely on technical matters, then there is no ethical demand for the resignation.