Could a class-action plaintiff who expected to testify remain counsel of record without serving as trial advocate?

Plain-English summary

A lawyer was both named plaintiff and co-counsel in a class action. The lawyer expected to testify but did not intend to act as advocate at trial or any proceeding requiring testimony.

On those facts, the opinion said remaining counsel of record would not violate Rule 4-3.7. It did not decide the defense’s disqualification motion, which it left to the judge.

Currency note

This opinion was issued in 1999, 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: Did the opinion approve trial advocacy while testifying?

A: No. Its conclusion rested on the lawyer not acting as advocate where testimony was required.

Q: Who would decide disqualification?

A: The judge before whom the case was pending.

Background and rules framework

The answer applied Rule 4-3.7 and expressly reserved disqualification to the judge.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-3.7

See also

• Missouri Informal Op. 990206: Witness Lawyer on Appeal

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/990175/

• 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 is the named plaintiff in a class action lawsuit now pending. Attorney is also co-counsel of record. Attorney has no intention, as plaintiff, of being an advocate at trial or during any proceeding wherein Attorney´s testimony may be required. Attorney fully intends to only be a plaintiff and witness at trial. The attorneys for the defendants have filed a motion to disqualify Attorney, alleging that Attorney cannot serve as plaintiff and co-counsel at the same time. Is this a violation of the ethical rules?

ANSWER: Based upon the information provided, Attorney would not violate Rule 4–3.7 by remaining as counsel of record in the case. This office cannot address the issue of disqualification. The decision on disqualification belongs to the judge before whom the case is pending.