Can a subpoenaed lawyer continue representing clients at trial?

Plain-English summary

An opposing party subpoenaed the lawyer, who sought to quash the subpoena and asked whether client representation could continue.

The opinion distinguishes trial from pretrial work. The lawyer may advocate at trial if not a trial witness, but may not represent anyone at trial if the lawyer testifies. Another office lawyer may represent the clients. Even a likely trial witness may continue pretrial work apart from matters involving the lawyer’s credibility. The opinion leaves the subpoena and motion to quash to the court.

Currency note

This opinion was issued in 1996, before Missouri’s 2007 revisions to the Rules of Professional Conduct. 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: May another lawyer from the office handle the trial?

A: Yes, even if the subpoenaed lawyer testifies.

Q: May a likely witness continue pretrial work?

A: Yes, except in matters concerning the lawyer’s own credibility.

Background and rules framework

The opinion distinguishes trial from pretrial work. The lawyer may advocate at trial if not a trial witness, but may not represent anyone at trial if the lawyer testifies. Another office lawyer may represent the clients. Even a likely trial witness may continue pretrial work apart from matters involving the lawyer’s credibility. The opinion leaves the subpoena and motion to quash to the court.

See also

• Missouri Informal Op. 960153: Partner Witness and Firm Trial Role

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/960130/

Original opinion text

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

QUESTION: Attorney has been subpoenaed by the other party. Attorney is seeking to quash the subpoena. May Attorney continue to represent Attorney´s clients? ANSWER: Attorney may act as an advocate at trial if Attorney is not a witness at trial. However, if Attorney is a witness at trial, Attorney may not represent anyone at the trial. If there is another lawyer in Attorney´s office, that lawyer may represent Attorney´s clients at trial even if Attorney is a witness. If Attorney is likely to be a witness at trial, this does not prevent Attorney from continuing to represent Attorney´s clients in pretrial matters, except any matters relating to Attorney´s own credibility. This opinion does not imply any opinion on the subpoena or Attorney´s motion to quash. Those matters are within the sole province of the court.