Could government counsel defend a records suit if the lawyer might be a necessary witness?

Plain-English summary

Counsel for a public body had advised that requested records were closed. The requester might sue for access, and the lawyer asked about representing the body.

Under Rule 4-3.7, the opinion barred trial advocacy if the lawyer was likely a necessary witness. Another lawyer, including a colleague, should handle trial and pretrial matters involving the first lawyer’s credibility, such as a deposition. The first lawyer could handle other pretrial matters.

Currency note

This opinion was issued in 1998, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Was all pretrial participation barred?

A: No. The opinion allowed work not involving the lawyer’s credibility.

Q: Could a colleague handle trial?

A: Yes. The answer allowed another firm lawyer.

Background and rules framework

The answer expressly applied Rule 4-3.7.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-3.7

See also

• Missouri Informal Op. 990148: Witness at Depositions

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/980098/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Attorney represents a public governmental body. An individual has requested certain documents in Attorney’s possession to be disclosed. Attorney is of the opinion that the documents are closed records. Attorney has advised the client and the client has told the individual that the records cannot be viewed or copied. The individual may bring suit to try to obtain the documents. Would it be ethical for Attorney to represent the client in the case?
ANSWER: Under Rule 4–3.7, if Attorney is likely to be a necessary witness, Attorney may not be an advocate, at trial. If, in the course of the litigation, it becomes likely that Attorney will be a necessary witness, Attorney should make certain that another attorney is prepared to represent Attorney’s client at trial. That attorney should also be prepared to represent Attorney´s client on any matters during pre-trial which involve Attorney’s credibility, such as Attorney’s deposition. The other attorney may be from Attorney’s law firm. Attorney may represent Attorney’s client on other pre-trial matters.