If a lawyer who once certified title to disputed property now represents a party in a title case and may be called as a witness, can the lawyer or the lawyer's firm keep representing the client?

Plain-English summary

The inquiring attorney represented a client in a trespass case in which one issue would be a determination of title. Opposing counsel advised that the inquiring attorney had previously certified title to the disputed property under the Maine State Bar Association's title standards, and that he would be deposed on the matter; the attorney believed his prior certification was "probably" not relevant. He asked whether he could continue representing his client, and whether, if he were called as a witness at trial, another member of his firm could continue the representation.

The Commission worked through two rules. Rule 3.4(g)(1)(i) bars a lawyer from commencing representation in litigation if the lawyer knows or should know the lawyer is likely or ought to be called as a witness, but Rule 3.4(g)(1)(ii) creates an exception allowing a lawyer to commence representation if another lawyer in the firm is the likely witness. Standing alone, that rule would not prevent the firm from continuing. Rule 3.5(b)(1), however, requires the lawyer and the firm to withdraw from representation at trial when the lawyer or a firm lawyer is likely or ought to be a witness on the subject matter of the employment, "unless the court otherwise orders," and unless the lawyer would not be precluded under Rule 3.4(j). The Commission noted that Rule 3.4(j) no longer exists; tracing the renumbering history (former Rule 3.4(j) became Rule 3.4(g)(1), with the 1985 amendment adding what is now Rule 3.4(g)(1)(ii)), it concluded that Rule 3.5(b)(1) was intended to refer to the rule now designated Rule 3.4(g)(1)(ii).

So the Commission concluded that Rule 3.4(g)(1)(ii) answers the inquiry: as long as another lawyer represents the client, the firm may continue, and the inquiring lawyer may personally continue until he knows or should know he is likely to be called as a witness. The Commission said it could not determine at what point the "know or should know" threshold would be crossed; if in doubt and unwilling to transfer the representation to a colleague, the lawyer might have to bring the question to court in a pretrial motion. It added that even where continuation is permitted under those rules, a further analysis must be conducted under Rules 3.4(f) and 3.4(b), because the prospect of the attorney's prior work being presented to a fact finder to support a position contrary to the client's interest raises considerable concern about the desirability of continued representation.

Currency note

This opinion was issued in 1998, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer's firm keep a case where the lawyer will be a witness?

A: The opinion concluded yes, under Rule 3.4(g)(1)(ii), as long as another lawyer in the firm represents the client; the witness-lawyer himself need not disqualify the whole firm.

Q: Can the lawyer who certified the title personally continue to represent the client?

A: The opinion concluded he may continue until he knows or should know he is likely to be called as a witness. The Commission could not fix the precise point that threshold is crossed and suggested a pretrial motion if in doubt.

Q: Does being allowed to continue end the analysis?

A: No. The opinion concluded a further analysis under Rules 3.4(f) and 3.4(b) is required, because the lawyer's prior title work may be used against the client, raising conflict concerns about continued representation.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(g)(1) (the lawyer-as-witness rule and its firm exception) and Rule 3.5(b)(1) (withdrawal at trial when a lawyer or firm lawyer will be a witness), resolving the rule's outdated cross-reference to a renumbered provision; it also points to Rules 3.4(f) and 3.4(b) for the conflicts overlay. These correspond to ABA Model Rule 3.7 (lawyer as witness, including the firm-imputation provision) and Model Rule 1.7 (conflicts of interest).

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 (lawyer as witness)
• Model Rule 1.7 (conflicts of interest)
• Maine Bar Rule 3.4(g)(1)(i)-(ii), 3.5(b)(1), 3.4(f), 3.4(b)

Other authorities:

• Maine State Bar Association title standards (basis of the prior certification).

See also

• NY State Bar Op. 642: Lawyer-as-Witness Rule in Arbitration
• NY State Bar Op. 1045: In-House Counsel as a Witness in an Agency Investigation

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89582

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: October 14, 1998

Question

The inquiring attorney represents a client in a trespass case in which one issue to be decided will be a determination of title. Opposing counsel has advised the inquiring attorney that the inquiring attorney had previously certified title to the disputed property in accordance with the standards of the Maine State Bar Association. While the inquiring attorney believes his previous certification is ?probably? not relevant, he has been advised he will be deposed by opposing counsel on the matter.

The question is whether under the circumstances the Inquiring attorney can continue to represent his client, and whether at the trial even if he is to be called as a witness another member of his firm may continue to represent his client.

Opinion

Rule 3.4(g)(1)(i) states that ?A lawyer shall not commence representation in contemplated or pending litigation if the lawyer knows, or should know, that the lawyer is likely or ought to be called as a witness.? Rule 3.4(g)(1)(ii) creates an exception to the above rule by stating that, subject to exceptions that we are assuming for the purposes of this discussion are not relevant to this inquiry, ?[a] lawyer may commence representation in contemplated or pending litigation if another lawyer in the lawyer?s firm is likely or ought to be called as a witness.?

Were Rule 3.4(g)(1) the only applicable rule, the attorney?s firm, would not be prevented from continuing the representation. The problem arises because Rule 3.5(b)(1) seems to answer the inquiry differently: ?If a lawyer knows, or should know, that the lawyer or a lawyer in the lawyer?s firm is likely or ought to be called as a witness in litigation concerning the subject matter of the lawyer?s employment, the lawyer and the lawyer?s firm shall withdraw from representation at the trial unless the court otherwise orders. This rule does not apply to situations in which the lawyer would not be precluded from accepting employment under Rule 3.4(j).?

The reference in the last sentence of Rule 3.5(b)(1) to Rule 3.4(j) is problematical since Rule 3.4(j) does not exist in the present Rules.[1] Until the 1993 amendments, the text of Rule 3.4(g)(1) was Rule 3.4(j). The 1985 amendment to old Rule 3.4(j) added the provision now designated as Rule 3.4(g)(1)(ii). When present Rule 3.4 was revised In 1993, no substantive changes were made to Rule 3.4(j) other than re-designating it as Rule 3.4(g)(1). The Commission therefore concludes that Rule 3.5(b)(1) intended to refer to the rule now designated as Rule 3.4(g)(1)(ii).

Thus the Commission concludes that Rule 3.4(g)(1) (ii) answers the inquiry. As long as another lawyer represents the client the firm may continue its representation. If the Inquiring lawyer wishes to personally continue representation of the client, he may do so until such time he knows, or should know, that he is likely to be called as a witness. The Commission is in no position to determine at what point in the facts will develop such that the ?know or should know? threshold is crossed. If in doubt and the inquiring attorney Is unwilling to transfer representation to another member of his firm, he may have to bring the inquiry to court in an appropriate pre-trial motion.

The Commission further adds that even if the attorney or his firm may continue representation under the cited Rules, a further analysis must be conducted under Rule 3.4(f) and 3.4(b). After all, the prospect of the attorney?s prior work being presented to a fact finder to support a position contrary to the interest of the client raises considerable concern about desirability of continued representation under principles set forth in these two Rules.

Footnote

[1] The West Publishing pamphlet of Maine Rules of Court, 1997, cite the reference as a rule 3.4(g)(1)(i), but there is no authority for that modification, and the Rule as officially promulgated is as stated in this opinion.