Can a lawyer who is likely to be a necessary trial witness keep representing the client before trial, and can the lawyer represent two clients in the same matter?

Plain-English summary

The opinion arises from related litigation against Defendant X in which Attorney B comes to represent both Client 1 and Client 2, and is then told by Client 1's former lawyer, Attorney A, that Attorney B will be called as a witness in Attorney A's fee dispute with Client 1. The questions are whether Attorney B may represent Client 1 in the fee dispute and whether he may represent Client 1 in the litigation against Defendant X.

On the lawyer-as-witness question, the opinion applies Rule 3.7(a), which bars a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness, subject to exceptions for uncontested issues, the value of legal services, and substantial hardship to the client. The opinion stresses that the rule's concern, confusing or misleading the trier of fact by having a lawyer serve as both advocate and witness, arises only when the lawyer actually appears before the trier of fact. It therefore concludes that Rule 3.7 does not preclude the lawyer from participating in pre-trial matters such as discovery and motions; Attorney B is under no ethical restriction from accepting the fee-dispute representation, though where he is on notice he will likely be a necessary witness, Rules 1.2(c) and 1.4 likely require informing the client of, and potentially obtaining consent to, the limits on his representation.

On the multiple-representation question, the opinion concludes nothing in the facts bars Attorney B from representing both Client 1 and Client 2 against Defendant X, but he must be mindful of the conflict and confidentiality concerns the Comments to Rule 1.7 identify: the common representation may fail if the clients become antagonistic, a conflict may arise if Defendant X's assets cannot satisfy both clients, confidentiality between co-clients is generally not available, and the attorney-client privilege may not protect their communications if they later become adverse. The opinion concludes the clients should give informed consent to the common representation, with disclosure of these factors, while declining on the limited facts to find the representation prohibited.

In practice

Under the Illinois Rules, the opinion holds that a likely necessary witness may continue to represent the client in all pre-trial stages and is barred by Rule 3.7 only from acting as the advocate at trial, and that the lawyer should inform the client of the limitation under Rules 1.2(c) and 1.4. For the joint representation of two clients in one matter, the opinion treats informed consent, after disclosure of the loyalty, confidentiality, and privilege implications, as the ordinary requirement.

Common questions

Q: Can a lawyer who will be a trial witness keep working on the case before trial?

A: Yes. The opinion concludes Rule 3.7 bars only acting as an advocate at trial, so the lawyer may conduct discovery, draft motions, and otherwise participate in pre-trial matters.

Q: Must the lawyer tell the client about the looming disqualification?

A: The opinion concludes that where the lawyer is on notice of likely being a necessary witness, Rules 1.2(c) and 1.4 likely require informing the client of, and potentially obtaining consent to, the limits on the representation.

Q: Can one lawyer represent two clients in the same matter against the same defendant?

A: The opinion concludes there is no per se bar, but the lawyer must address conflict and confidentiality concerns and ordinarily must obtain the clients' informed consent to the common representation.

Q: Does confidentiality apply between two clients the lawyer jointly represents?

A: The opinion concludes confidentiality as between the two co-clients will generally not be ethically permissible, and the attorney-client privilege will likely not protect their communications if they later become adverse to each other.

Background and rules framework

The opinion interprets Illinois Rule 3.7 (lawyer as witness), including the exceptions in Rule 3.7(a), and the limited-scope and communication provisions of Rules 1.2(c) and 1.4. For the common-representation analysis it applies Rule 1.7 (concurrent conflicts) and its Comments and Rule 1.9 (former clients), and draws on Section 75 of the Restatement (Third) of the Law Governing Lawyers regarding the co-client privilege.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness) / IL Rule 3.7(a)
• MR 1.7 (concurrent conflicts of interest) / IL Rule 1.7
• MR 1.2(c), MR 1.4 (limited scope; communication) / IL Rules 1.2(c), 1.4

Cases:

• Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988), pre-trial work does not violate Rule 3.7
• Mercury Vapor Processing Techs., Inc. v. Village of Riverdale, 545 F. Supp. 2d 783 (N.D. Ill. 2008)

Other opinions cited:

• ISBA Advisory Opinion 11-06: lawyer-witness may continue representation until trial
• ISBA Advisory Opinion 04-01: conflicts where a defendant's assets cannot satisfy multiple clients

See also

• ISBA Ethics Op. 11-06: Lawyer-Witness May Represent the Client Until Trial
• NY State Bar Op. 1045: In-House Counsel as a Witness in an Agency Investigation
• NY State Bar Op. 642: Lawyer-as-Witness Rule in Arbitration

Source

• Landing page: https://www.isba.org/ethics/opinions/1105