Does a lawyer have to withdraw from a case just because the opposing party says it will call him as a witness?

Plain-English summary

A law firm had represented a client for over 15 years, with Partner A regarded as the client's personal counsel. When a civil action was brought against the client to recover a real estate broker's commission, the firm undertook the defense, with Partner B, the firm's trial partner, primarily responsible. The firm had no reason to anticipate that one of its members would be a witness. Plaintiff's counsel then took Partner A's deposition and gave notice that the plaintiff would call him as a witness at trial. Partner A had no knowledge of the transaction behind the brokerage claim, though he was apparently at the periphery of early negotiations that never produced a sale. Partner B asked whether the firm could continue as counsel.

The committee answered that an attorney need not withdraw simply because he expects to be called to testify by his adversary, citing Florida Opinion 64-39 and Drinker, Legal Ethics, p. 159, which held that former Canon 19 did not apply where the lawyer was called by his adversary. The committee quoted DR 5-102(B) of the Code of Professional Responsibility, which carried forward that distinction and permits continued representation until it is apparent that the testimony is or may be prejudicial to the client, and noted a committee footnote stressing that the testimony restriction was not designed to let a lawyer call opposing counsel as a witness and thereby disqualify him. The committee was satisfied that Partner A's testimony would not be prejudicial to the client and that there was no disagreement between Partner A and the client about the facts at issue, and unanimously concluded that the firm could continue as counsel.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility and the older Canons of Professional Ethics, which have since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-3.7 before relying on any specific requirement mentioned here.

Common questions

Q: Does naming a lawyer as a witness automatically knock him off the case?

A: Under this opinion, no. The committee held that a lawyer need not withdraw simply because his adversary expects to call him to testify, and noted that the rule was not meant to let a party disqualify opposing counsel by calling him as a witness.

Q: When would the lawyer have to step aside?

A: The opinion, quoting DR 5-102(B), said the lawyer may continue until it is apparent that his testimony is or may be prejudicial to his client.

Q: Why could the firm stay in this particular case?

A: The committee was satisfied that Partner A's testimony would not be prejudicial to the client and that there was no disagreement between Partner A and the client about the facts at issue.

Background and rules framework

The opinion applied DR 5-102(B) of the former Code of Professional Responsibility, and distinguished the older Canon 19, on whether a lawyer who is to be called by the opposing party must withdraw. In current Florida practice the lawyer-as-witness rule is Rule 4-3.7; the Model Rule analogue is Rule 3.7.

Citations and references

Rules of Professional Conduct:

• CPR DR 5-102(B) (lawyer called as a witness other than on behalf of his client)
• Canon 19, former Canons of Professional Ethics

Other opinions cited:

• Florida Opinion 64-39

Other authorities:

• Drinker, Legal Ethics, p. 159

See also

• FL Bar Ethics Op. 74-36: Lawyer Named as a Witness by the Opposing Side
• FL Bar Ethics Op. 76-26: Lawyer-Officer as a Material Witness
• FL Bar Ethics Op. 77-3: Office-Sharing Lawyers Adverse and Fee Testimony
• FL Bar Ethics Op. 84-4: Lawyer as Witness in a Firm Fee-Collection Suit

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-2/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-2-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-2
February 11, 1972
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; rather, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.
Canon: 19, old Canons of Professional Ethics
CPR: DR 5-102(B)
Opinion: 64-39
Misc: Drinker, Legal Ethics, p. 159
Chairman Clarkson stated the opinion of the committee:
A law firm has represented a particular client for over 15 years. The client has considered Partner A to be his personal counsel.
A civil action was instituted against the client for recovery of a real estate broker's commission. The firm undertook defense of the action. Partner B, the firm's trial partner, has been primarily responsible for the defense and will handle the trial.
At the time defense of the action was assumed, the firm had no reason to anticipate one of its members would be called as a witness in the cause. Plaintiff's counsel, however, took the deposition of Partner A and then gave notice he would be called by the plaintiff as a witness at the trial. Although Partner A had no knowledge of the transaction out of which the brokerage claim arose, apparently he was at the periphery of beginning negotiations which never culminated in a sale by his client.
Under these circumstances Partner B seeks our advice whether the firm may continue as counsel in the cause.
An attorney need not withdraw from representation of a client simply because he expects to be called to testify by his adversary. Florida Opinion 64-39. Drinker, Legal Ethics, p. 159, held that former Canon 19 was not applicable where the lawyer was called by his adversary. The CPR carries forward this distinction. DR 5-102(B) provides:
If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.
A Committee footnote to the rule emphasizes that the restriction on giving testimony "was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel."
The facts presented with this inquiry have demonstrated to our satisfaction that Partner A's testimony will not be prejudicial to his client, nor does it appear there is any disagreement between Partner A and his client as to the facts at issue.
The Committee has unanimously concluded that the firm may continue as counsel in the pending action.