Can a lawyer who is also a corporation's officer and a material witness keep representing it in litigation?

Plain-English summary

The inquiring attorney was a stockholder in, vice president of, and attorney for a corporation involved in litigation over a construction loan agreement. He had acted as a corporate officer as well as attorney in negotiating and closing the loan and was the only representative of the borrower present throughout the loan proceedings, so his testimony was very material. The corporation was insolvent, unable to employ other counsel, and, in the inquirer's view, would suffer substantial hardship if he could not continue as counsel even though a material witness. He also noted that the lender's closing attorney was a partner of the lender's attorney of record in the litigation.

The committee said it had no power to pass on the conduct of opposing counsel. As to the inquirer's own conduct, a majority concluded that he should use every effort to secure representation of the client by another attorney to the extent the case might turn on his testimony. Failing in that, he should disclose all the facts to the court in the presence of opposing counsel and, if possible, secure a determination by the court that the facts brought him within DR 5-101(B)(4) and EC 5-10. A minority of the committee felt the inquirer should withdraw as attorney in the litigation.

Currency note

This opinion was issued in 1977, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has 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 Treat this page as historical context, not current guidance.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: Can a lawyer who is also a corporate officer and material witness keep representing the company?

A: The opinion concluded the majority view was that he should first try to secure outside counsel to the extent the case might turn on his testimony.

Q: What if no other counsel is available for the insolvent corporation?

A: Per the opinion, he should disclose all the facts to the court in the presence of opposing counsel and, if possible, secure a court determination that he falls within the hardship exception (DR 5-101(B)(4) and EC 5-10).

Q: Was the committee unanimous?

A: No. A minority of the committee felt the inquirer should withdraw as attorney in the litigation.

Background and rules framework

The opinion applied EC 5-10 and DR 5-101(B)(4) of the former Code of Professional Responsibility, which addressed when a lawyer who will be a witness may nonetheless continue as advocate, including a hardship exception. That subject corresponds to Model Rule 3.7 (lawyer as witness; current Florida Rule 4-3.7). The committee also noted it had no authority to assess opposing counsel's conduct.

Citations and references

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

• CPR EC 5-10; DR 5-101(B)(4) (advocate who is also a witness; hardship exception)

See also

• FL Bar Ethics Op. 84-4: Lawyer-Witness in Fee Suit
• FL Bar Ethics Op. 77-3: Office-Sharing Lawyers Adverse
• LACBA Op. 513: Cross-Examining a Former Client as Expert

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-26/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-26-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-26
May 9, 1977
Advisory ethics opinions are not binding.
An attorney who is a stockholder in, vice president of, and attorney for a corporation that is insolvent and has been unable to employ other counsel for litigation in which the attorney will be a material witness should attempt to secure outside representation for the corporation. If he is unable to do so, he should secure a determination by the court that the facts of the case bring him within the hardship exception to the rule against an advocate testifying.
CPR: EC 5-10; DR 5-101(B)(4)
Vice Chairman Taylor stated the opinion of the committee:
An inquiring attorney is a stockholder in, vice president of, and attorney for a corporation presently involved in litigation in regard to a construction loan agreement, in negotiating and closing which the inquirer acted as a corporate officer as well as attorney and he is the only representative of the borrower present throughout the loan proceedings. His testimony is very material to the case.
The corporate borrower is insolvent and unable to employ other counsel and will, in the opinion of the inquirer, suffer substantial hardship and financial sacrifices if he is not permitted to continue to act as counsel even though a material witness in the pending litigation.
The inquirer also points out that the lender's closing attorney is a partner of the lender's attorney of record in the pending litigation.
Our Committee has no power to pass upon the conduct of the inquirer's opposing counsel.
As regards the inquirer's conduct, it is the opinion of a majority of the Committee that he should use every effort to secure representation of the client by another attorney to the extent that the case may turn upon the testimony of the inquirer.
Failing in this he should disclose all the facts to the court in the presence of opposing counsel, and, if possible, secure a determination by the court that the facts of the case bring him within DR 5-101(B)(4) and EC 5-10.
A minority of the Committee feels that the inquirer should withdraw as attorney in the litigation.