Could a lawyer who witnessed relevant conduct remain trial advocate when unlikely to be a necessary witness?

Plain-English summary

A lawyer had witnessed conduct involved in a client's suit but, on the information provided, was unlikely to be a trial witness. The lawyer asked whether withdrawal was required.

The opinion applied Rule 4-3.7(a)'s limit on advocacy by a lawyer likely to be a necessary witness and allowed this lawyer to continue as trial advocate on the stated facts. It explained that even if the lawyer became a necessary witness, the lawyer could remain attorney of record but not advocate at trial. The opinion left a judge's power to rule on a disqualification motion unaffected.

Currency note

This 1995 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Did witnessing the conduct automatically require withdrawal?

A: No. The opinion allowed trial advocacy because the lawyer was not likely to be a necessary witness.

Q: What if the lawyer were a necessary witness?

A: The opinion permitted remaining attorney of record but barred serving as trial advocate.

Q: Did the opinion decide a future disqualification motion?

A: No. It expressly left the judge's authority to rule on such a motion intact.

Background and rules framework

The opinion applied Missouri Rule 4-3.7(a) to the distinction between witnessing relevant events and being likely to be a necessary trial witness. It also distinguished attorney-of-record status from acting as advocate at trial.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-3.7(a)

See also

• Missouri Informal Op. 20040012: Eyewitness lawyer as advocate
• Missouri Informal Op. 20000170: Necessary witness and firm advocate

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/950226/

Original opinion text

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

QUESTION: Attorney represents a client in a suit regarding conduct which Attorney witnessed. The information provided by Attorney indicates that Attorney is not likely to be a witness at trial. Must Attorney withdraw? ANSWER: Rule 4–3.7(a) provides, in part, that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . .” Even if Attorney is likely to be a necessary witness, Attorney may continue to be an attorney of record in the case but Attorney may not be an advocate at trial. Under the circumstances described, Attorney may continue in the case as an advocate at trial. This opinion does not, in any way, affect the ability of a judge to rule on a motion to disqualify.