Does a lawyer have to withdraw when opposing counsel names the lawyer as a witness years into the case?

Plain-English summary

A lawyer was retained for several clients to foreclose a chattel mortgage and prosecute a shareholders' derivative action. After the actions were filed, a counterclaim asserted tort claims against the plaintiffs. One plaintiff died during the litigation and the lawyer became executor of his estate. After several years and several appeals, defense counsel named the plaintiffs' lawyer and one of his associates as witnesses. The lawyer-executor asked whether he could ethically waive the lawyer-client privilege and whether he could continue as counsel.

On the privilege, the committee said whether an executor may waive it is a question of law for the courts, but assuming the executor has that legal right, there is no ethical impediment to exercising it in the former client's best interests. On withdrawal, the committee concluded the lawyer was not required to step down. It read former Canon 19 and DR 5-102(B) as not requiring withdrawal where the lawyers ought not be called as witnesses but are in fact called by opposing counsel, citing Drinker's statement that the canon "is not applicable where the lawyer is called by his adversary." The committee stressed the hardship of forcing clients to hire new counsel mid-stream in complex proceedings pending more than three years, and expressly left for another day the question of a lawyer who ought to be called but does not plan to take the stand unless called by another party.

Currency note

This opinion was issued in 1975, 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, 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 Treat this page as historical context, not current guidance.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: Must a lawyer withdraw if the other side lists him as a witness?

A: Under this opinion, no, not where the lawyer ought not be called and is named only by opposing counsel; the committee read DR 5-102(B) as not requiring withdrawal in that situation.

Q: Did the lawyer's having no relevant knowledge matter?

A: Yes. The committee emphasized that a client should not lose counsel of his choosing merely because the lawyer is named as a witness in litigation in which he has no personal knowledge relevant to any material matter.

Q: Could the lawyer-executor waive the client's privilege?

A: The committee said whether an executor may waive the privilege is a legal question for the courts; assuming the legal right exists, there is no ethical bar to waiving it in the former client's best interests.

Background and rules framework

The opinion applied former Canon 19 of the Canons of Professional Ethics and DR 5-102(B) of the Code of Professional Responsibility, governing a lawyer who may be called as a witness. Those provisions correspond to Model Rule 3.7 (lawyer as witness) and current Florida Rule 4-3.7. The opinion drew on Drinker, Legal Ethics, p. 159, for the proposition that the witness-withdrawal rule does not apply when the lawyer is called by his adversary.

Citations and references

Rules of Professional Conduct (as cited, former Code and Canons):

• Canon 19, Canons of Professional Ethics
• CPR DR 5-102(B) (refusing employment / withdrawal when lawyer may be a witness)

Other references:

• Drinker, Legal Ethics, p. 159

See also

• FL Bar Ethics Op. 76-26: Lawyer-Officer as Witness
• FL Bar Ethics Op. 84-4: Lawyer-Witness in Fee Suit
• FL Bar Ethics Op. 77-3: Office-Sharing Lawyers Adverse

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-74-36/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-74-36-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 74-36
January 23, 1975
Advisory ethics opinions are not binding.
A lawyer representing several clients in actions to foreclose a chattel mortgage and prosecute a shareholders' derivative action is not obligated to withdraw when, after years of litigation, opposing counsel names the lawyer as a witness.
Canon: Canon 19, Canons of Professional Ethics
CPR: DR 5-102(B)
Misc: Drinker, Legal Ethics, p. 159
Vice Chairman Daniels stated the opinion of the committee:
A lawyer was retained on behalf of several clients to foreclose a chattel mortgage and prosecute a shareholders' derivative action. After such actions were commenced, a counterclaim was filed asserting various tort claims against the plaintiffs. While the litigation was pending, one of the plaintiffs died and the lawyer was named executor of his estate.
The litigation produced several appellate proceedings and after several years of litigation counsel for the defendants-counterclaimants named counsel for plaintiffs and one of his associates as witnesses.
The inquiring lawyer-executor asks: (1) if he may ethically waive the lawyer-client privilege; and (2) whether he can ethically continue as counsel in the cause.
Whether an executor is legally entitled to assert or waive the lawyer-client privilege after the death of the client is a question of law for the courts to determine. However, assuming that the executor has the legal right to assert or waive the privilege it is clear that there is no ethical impediment in doing so. In those cases where the executor may lawfully claim or waive the privilege, his ethical duty is simply to do whatever he deems in his former client's best interests.
Under the facts presented, the Committee is likewise of the opinion that the inquiring lawyer is not required to withdraw as counsel of record in the pending litigation. The inquirer does not believe that he or any lawyer in his firm ought to be called as a witness and it is not contemplated that they will testify unless called to the stand by opposing counsel.
In Drinker, Legal Ethics, p. 159, the author states that former Canon 19 "is not applicable where the lawyer is called by his adversary." Present DR 5-102(B) should not be construed as requiring withdrawal where the lawyers involved ought not be called as witnesses but are in fact called as witnesses by opposing counsel. This is particularly true when, as here, it would cause considerable hardship and added expense to clients who would have to hire new counsel to step into complex appellate and trial proceedings which have been pending for more than three years.
The Committee leaves for future determination the question whether DR 5-102(B) should be construed as requiring withdrawal of a lawyer who ought to be called a a witness but does not contemplate taking the stand unless called by counsel representing another party in the cause. Whatever the rule may be in that situation, it is clear that a client should not be deprived of effective representation by counsel of his own choosing merely because his lawyer is called as a witness in litigation in which the lawyer has no personal knowledge relevant to any material matter of substance in the cause.