May a lawyer advocate at trial when another lawyer in the firm who formerly represented the client may be a necessary witness?

Plain-English summary

Another member of the lawyer’s firm formerly represented the client and appeared likely to be a necessary trial witness. The opposing claim concerned events after that member stopped representing the client, when the inquiring lawyer alone handled the matter for the firm.

On those facts, the opinion finds the inquiring lawyer unlikely to be a necessary witness and thus not barred by Rule 4-3.7 from advocating at trial. If that lawyer is called as a witness, only the court may decide whether the lawyer can also advocate. The opinion separately directs attention to potential conflicts under Rules 4-1.7 and 4-1.9.

In practice

The opinion’s permission for the inquiring lawyer to advocate rests on that lawyer’s apparent lack of necessary witness testimony. It leaves any advocate-witness decision after a call to testify to the court.

Common questions

Q: Does a former firm member’s likely testimony bar the current lawyer from trial advocacy?

A: Not on the stated facts. The opinion says the current lawyer appears unlikely to be a necessary witness.

Q: Who decides if the advocating lawyer is called to testify?

A: The opinion says only a court may decide whether that lawyer can act as advocate at trial.

Q: Are other conflicts mentioned?

A: Yes. The opinion cites Rules 4-1.7 and 4-1.9 as matters to consider under Rule 4-3.7(b).

Background and rules framework

The opinion applies Rule 4-3.7 to the inquiring lawyer’s role as potential trial witness. It cites Rule 4-3.7(b) for consideration of conflicts under Rules 4-1.7 and 4-1.9.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-3.7 and Rule 4-3.7(b)
• Rules 4-1.7 and 4-1.9

See also

• Missouri Informal Op. 2023-04: Lawyer as Witness

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/2015-06/

Original opinion text

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

Question: Is Attorney precluded by Rule 4–3.7 from representing Client where another Member of Attorney’s firm formerly represented Client and is likely to be a necessary witness at trial, and opposing party’s claim relates to matters that occurred after Member ceased the representation and while Attorney was the sole attorney in the firm representing client?

Answer: Based on the facts presented, it appears Attorney is not likely to be a necessary witness at trial and therefore is not prohibited by Rule 4–3.7 from acting as an advocate at trial. However, if Attorney is called as a witness at trial, only a court would have the right to determine if Attorney may act as an advocate at the trial. Rule 4–3.7(b) also requires Attorney to consider if he is precluded from acting as an advocate at trial by Rule 4–1.7 or Rule 4–1.9.