Can a lawyer keep representing a client when the lawyer's own paralegal or employee will testify as a witness for that client?
Apply this to your situation
This page answers the general question as of 1995. Ask about yours and see what the current North Carolina Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The opinion answered a single question: whether a lawyer defending a client in an action to abate the nuisance of a fence could have the firm's real estate paralegal sign an affidavit, prepare exhibits, and testify in opposition to the plaintiff's motion for a preliminary injunction. The opinion concluded that the lawyer could, relying on its earlier opinion RPC 19, which holds that a lawyer may represent a client even though an employee may be called as a witness on the client's behalf. The lawyer-as-witness restriction did not bar the arrangement because the witness was the lawyer's employee, not the lawyer.
Currency note
This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer's paralegal testify for the client while the lawyer stays on the case?
A: Yes. The opinion concluded that a lawyer may represent a client even though one of the lawyer's employees may be called as a witness for that client, citing RPC 19.
Q: Does the lawyer-as-witness rule apply when it is the employee, not the lawyer, who testifies?
A: No. The opinion treated the witness-advocate restriction as not triggered, because the person testifying was the lawyer's employee rather than the lawyer.
Background and rules framework
The opinion applied North Carolina's then-current Rule 5.2, the lawyer-as-witness provision corresponding to Model Rule 3.7. That rule restricts a lawyer from acting as advocate at a trial where the lawyer is likely to be a necessary witness; the opinion read it, through RPC 19, as not extending to a lawyer's employee serving as a witness.
Citations and references
Rules of Professional Conduct:
- MR 3.7 (lawyer as witness)
- North Carolina Rule 5.2
Other opinions cited:
- RPC 19 (a lawyer may represent a client even though an employee may be a witness)
See also
- NC Ethics Op. RPC 207: lawyer as witness in a bad-faith action
- NC Ethics Op. RPC 221: receipt of evidence of a crime
Source
- Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-213/
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Editor's Note: This opinion was originally published as RPC 213 (Revised).
Inquiry:
May a lawyer who is representing a defendant in an action to abate the nuisance of a fence have his real estate paralegal sign an affidavit, prepare exhibits, and testify in opposition to the plaintiff's motion for preliminary injunction?
Opinion:
Yes. RPC 19 holds that a lawyer may represent a client even though an employee may be called as a witness on behalf of a client.
What do the rules say today, for your facts?
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