Can a lawyer take a tort case when a salaried associate in his office is one of several witnesses to the accident?

Plain-English summary

A lawyer was asked by out-of-state counsel to associate in a tort claim arising from an automobile accident witnessed by numerous people, including the circuit judge who would hear the case, the chief of police, a police sergeant, and several attorneys. One of those attorney-witnesses was the inquiring lawyer's son, who practiced in the same office but was not a partner and was paid a straight salary, so his income did not depend on the case's outcome. The son's testimony appeared to be cumulative and might not be used at trial at all. The committee concluded it was not per se unethical for the lawyer to accept the employment.

The committee surveyed the authorities on a lawyer appearing as a material witness, noting (citing ABA Formal Opinion 50) that an attorney or his partner should not testify in a will-contest case about the testator's competency when one side is represented by the attorney or his partner, while courts have generally held that a lawyer's testimony for his client is competent and affects only his credibility. On the facts presented, two points were decisive: the attorney-witness was not an actual partner of the attorney accepting the case, and, more importantly, his testimony did not appear to be essential to the prospective client's case.

The committee qualified its conclusion. It proceeded on the assumption that the son's testimony was merely cumulative and not necessary; if the testimony were necessary, some members doubted the employment should be accepted, and the client should be made fully aware that the son would not be called as a witness. If the son's testimony would be unfavorable to his father's version of the case, the committee suggested the employment perhaps should be refused, since the opposition could call him and materially alter the case. The committee added that at trial both sides would best serve justice by refraining from mentioning that the plaintiff's attorney's son was a witness, a matter it suggested be handled in pretrial conference, and restated the usual admonition that a lawyer should avoid not only improper relationships but the appearance of them.

Currency note

This opinion was issued in 1971 under the former Code of Professional Responsibility, before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. The lawyer-as-witness question it addressed is now governed by Model Rule 3.7 (and its treatment of imputation within a firm), and the related conflict question by Model Rule 1.7, with Kentucky's counterparts at SCR 3.130. 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 rule or requirement mentioned here.

Common questions

Q: Can a lawyer take a case when someone in his office witnessed the events?

A: The committee said it was not per se unethical here, because the office witness was a salaried non-partner and his testimony appeared merely cumulative and not essential to the case.

Q: Would the answer change if the associate's testimony were essential?

A: Possibly. The committee said if the testimony were necessary, some members doubted the employment should be accepted, and the client should be told the associate would not be called.

Q: What if the associate's account would hurt the client's case?

A: The committee suggested the employment perhaps should be refused, because the opposition could call the associate as a witness and materially alter the case.

Background and rules framework

The opinion addressed when a lawyer may represent a client while a member of his office is a witness, drawing on ABA Formal Opinion 50 and the general rule that a lawyer's testimony affects only his credibility. The modern analogs are Model Rule 3.7 (lawyer as witness, including when the conflict is imputed to others in the firm) and Model Rule 1.7 (concurrent conflicts), with Kentucky's counterparts at SCR 3.130.

Citations and references

Rules of Professional Conduct:

• Code of Professional Responsibility (lawyer as witness); modern analogs Model Rules 3.7 and 1.7

Other opinions cited:

• ABA Formal Opinion 50 (attorney or partner should not testify to a testator's competency in a will contest the firm is handling)

See also

• KBA Ethics Op. E-145: Deed-Drafting Lawyer Defending a Suit to Set It Aside
• KBA Ethics Op. E-42: Representing the Successor Corporation Against the Prior Owner

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-048.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-48
Issued: October 1971

This opinion was decided under the Code of Professional Responsibility,
which was in effect from 1971 to 1990. Lawyers should consult the current
version of the Rules of Professional Conduct and Comments, SCR 3.130
(available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney represent an accident victim in a tort claim where an
associate of his firm witnessed the accident along with other persons, and
persons other than the associate will be called as witnesses?

Answer:

Yes.
OPINION

A member of our Association has been asked by out of-state counsel to associate
himself in a tort claim arising out of an automobile accident which is said to have been
witnessed by numerous persons, including incidentally, the Circuit Judge of the court
which will have jurisdiction of the litigation, the Chief of Police, a police sergeant, and
several attorneys. One of the attorneys happens to be the son of the member of our
Association who questions whether or not he can ethically become involved in the
litigation. According to the attorney making the inquiry, his son is a practicing attorney in
the same office, but is not a partner in the firm and is employed upon a straight salary basis,
so that his income is not dependent upon the results of this or any other particular piece of
litigation. Apparently the son’s testimony will be cumulative, and might not be used in
evidence at all during the trial.
Much has been written in the Canons of Professional Ethics, the newer Code of
Professional Responsibility, and in the opinions of Ethics Committees and Courts
concerning the appearance of an attorney as a material witness in a case. For example, it
has been held that an attorney or his partner should not testify in a will contest case
concerning the competency of the testator, when one side or the other is represented by the
attorney or his partner. See Formal Opinion 50, American Bar Association Opinions on
Professional Ethics.
On the other hand, Courts have generally held that, in the absence of any statute to
the contrary, the testimony of an attorney for his client is competent, and the fact that he is
or has been an attorney in the case affects only his credibility.
Under the circumstance as outlined to the Committee, the Committee cannot state
that it is per se unethical for an attorney to accept employment in a situation such as

presented. In the first place, the attorney-witness involved is not an actual partner of the
attorney accepting the employment, and, probably more importantly, the testimony of the
witness does not appear to be absolutely essential to the prospective client’s case.
In coming to this conclusion, the Committee is proceeding upon the assumption
that the testimony of the attorney-son is, in fact, merely cumulative, and is not necessary
to the proper prosecution of the claim. In the event that his testimony is necessary, there
is some doubt in the minds of the members of the Committee that the employment should
be accepted. There also appears to be a duty to the client in this situation, in that the client
should be fully aware that the attorney-son would not be called as a witness.
Again, if the testimony of the attorney-son would be unfavorable to his father’s
version of the case, perhaps the employment should be refused, as the son could obviously
be called as a witness by the opposition, which would have the effect of materially altering
the course of the case.
At the time of trial of the case, it would appear to the Committee to be in the best
interest of justice that both plaintiff’s and defendant’s attorneys refrain from mentioning in
any way that the son of the plaintiff’s attorney was a witness in the case, and, although the
Committee certainly has no authority to tell the presiding judge how this situation should
be handled, we would suggest that this matter should be disposed of in pretrial conference.
While the circumstances of the inquiry present a very delicate situation, we would
not go so far as to say that the attorney should not accept employment in the incident case,
but should adhere to the usual admonition that he should not only avoid improper
relationships, but also should avoid, as far as possible, giving the appearance of any
improper relationship.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.