Can a lawyer represent a client in a second case when the record from an earlier case in which the lawyer testified as a witness may be relevant, including for res judicata?

Plain-English summary

The inquiring lawyer had served as counsel for a corporation. When a stockholder sued the corporation and the lawyer's testimony seemed likely, he recommended the corporation retain other counsel, which it did. A second suit by the same stockholder, on a separate contract and also joining the chief stockholder, was filed but lay dormant. The first suit went to trial, with the inquirer testifying as a witness for the defendant, and ended in judgment for the defendant. The replacement counsel later left private practice, the dormant second suit revived, and the defendants asked the inquirer to represent them. His testimony would not be needed in the second case, but the record from the first case, including his testimony, might bear on issues such as res judicata or a malicious-prosecution counterclaim.

The committee, applying Canon 19, said that Canon was not intended to universally preclude representation in situations where the lawyer had given testimony. It concluded that the interrelationship of the two cases would not disqualify the lawyer from representing the defendants in the second case so long as he did not become a witness in it. The committee noted, citing its recent Opinion 66-63, that the effect of his prior testimony could become enough of a dispute that good taste or sound advocacy might call for associate counsel, and that it might be appropriate to discuss those considerations with the defendants in advance.

Currency note

This opinion was issued in February 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 19 on a lawyer testifying for a client. The lawyer-as-witness rule is now governed by 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 Treat this page as historical context, not current guidance.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: Did testifying in the first case bar the lawyer from the second case?

A: No. The committee said Canon 19 was not intended to universally preclude representation where the lawyer had given testimony, and the link between the cases would not disqualify him so long as he did not become a witness in the second case.

Q: What if his earlier testimony became a contested point in the second case?

A: The committee said that if the effect of his testimony became a source of legal or factual dispute, good taste or sound advocacy might dictate retaining associate counsel, and it might be appropriate to discuss this with the defendants in advance.

Background and rules framework

The opinion applied the former Canon 19, which directed that a lawyer who is a witness for the client, except on merely formal matters, should leave the trial to other counsel. The lawyer-as-witness subject is now addressed by Rule 4-3.7 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 3.7. The committee read Canon 19 together with its companion Opinion 66-63, decided the same period.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• Florida Opinion 66-63 (lawyer-witness; partner conducting the case)

See also

• FL Bar Ethics Op. 68-19: Fee Split With a Witness

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-76/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-76.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-76
February 3, 1967
Advisory ethics opinions are not binding.
An attorney is not necessarily precluded from representing a client in a second case even though a record compiled in an earlier case in which the attorney testified as a witness may be pertinent to certain issues developing in the second case, including res adjudicata.
Canon: 19
Opinion: 66-63
Chairman MacDonald stated the opinion of the committee:
The inquiring attorney had served as counsel for a corporation. A suit by a stockholder was filed against the corporation, and in view of the likelihood that his testimony would be required the inquirer recommended that the corporation retain other counsel, which step was taken. During the pendency of this litigation a second suit was filed against the corporation by the same stockholder, and the chief stockholder of the corporation was also joined as a defendant. The two suits were based upon alleged breaches of separate contracts. The corporation and the stockholder were represented in the second suit by the attorney who had assumed the representation of the corporation in the first case at the recommendation of the inquirer.
Although the second case remained dormant, the first case proceeded to trial, verdict and judgment for the defendant. During the trial the inquirer testified as a witness for the defendant. Subsequently the attorney who had been representing the corporation and the chief stockholder left the private practice of law for government service. At this point the dormant second suit sprang to life and it has become necessary for the defendants to procure counsel. They have requested that the inquirer represent them. It is now clear that his testimony as a witness will not be required in the second case. However, it is possible that the record made in the first case, including the testimony of the inquirer, would be pertinent to certain issues which may develop in the second case, including the possible defense of res adjudicata, or a possible counterclaim for malicious prosecution. In essence we are asked whether the effect of Canon 19, regulating the testimony of counsel, is such as to preclude the representation of the defendants in the second case. As more fully discussed in our recent Opinion 66-63, and the various authorities therein cited, the interpretation of Canon 19 has been a continuing source of difficulty for those charged with the task of rendering advisory ethical opinions. At the very least, however, we think that it is clear that Canon 19 was not intended to universally preclude representations in situations in which the lawyer had given testimony. Thus in the instant situation the interrelationship of the cases would not in our judgment serve to disqualify the lawyer from representation of the defendants in the second case so long as he did not become a witness therein. It, of course, is not inconceivable that the effect of his testimony in the first case could become such a source of legal or factual dispute that good taste or the principles of sound advocacy might dictate retention of associate counsel. Accordingly, it might be appropriate for the attorney to discuss in advance with the defendants these considerations.