When a New Jersey lawyer realizes he ought to be a witness, must he withdraw from the case right away, or can he continue through discovery?

Plain-English summary

The inquirer asked whether DR 5-102(A) requires a lawyer to withdraw from a matter short of trial when he learns or believes he ought to be called as a witness, or whether he may continue to handle the matter through discovery. The Committee observed that the rule speaks in terms of withdrawal "from the conduct of the trial," and that it was not intended to require immediate withdrawal in all cases. It pointed to Opinion 233 and to the ethical considerations underlying the rule, particularly EC 5-10.

The Committee quoted EC 5-10, which frames the lawyer-witness problem at different stages and applies the same basic considerations whether the question is accepting employment or withdrawing. It is not objectionable for a potential-witness lawyer to be an advocate if it is unlikely he will be called (his testimony being merely cumulative or relating only to an uncontested issue). In the exceptional case where it would be manifestly unfair to the client for the lawyer to refuse or withdraw when he will likely be a witness on a contested issue, he may serve as advocate; in deciding, he weighs the client's personal or financial sacrifice, the materiality of his testimony, and the effectiveness of his representation given his involvement, and doubts should be resolved in favor of the lawyer testifying and against his continuing as advocate.

The Committee concluded that the client's interests are always paramount, and the attorney must assess carefully when he ought to withdraw before trial, keeping in mind that another attorney must ultimately be substituted and must have reasonable time to exercise professional judgment in advising the client.

Currency note

This opinion was issued in 1979, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. It applied DR 5-102(A) and EC 5-10; in current New Jersey terms the lawyer-as-witness rule corresponds to RPC 3.7, whose structure differs from the older rule. Treat this page as historical context, not current guidance.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: Must a lawyer who realizes he is a likely witness withdraw immediately?

A: No. The opinion held DR 5-102(A) does not require immediate withdrawal in all cases; the rule addresses withdrawal from the conduct of the trial, so the lawyer may continue through discovery.

Q: When should the lawyer step aside?

A: Before trial, judged carefully, leaving the client reasonable time to substitute counsel. The client's interests are paramount.

Q: When may a likely-witness lawyer keep acting as advocate?

A: Where his testimony would be merely cumulative or relate only to an uncontested issue, or, exceptionally, where withdrawal would be manifestly unfair to the client on a contested issue, weighing the EC 5-10 factors.

Background and rules framework

The opinion applied DR 5-102(A) and EC 5-10, reading the rule's "conduct of the trial" language to allow continued representation through discovery while requiring a careful pre-trial judgment about withdrawal. In current New Jersey terms the lawyer-as-witness rule corresponds to RPC 3.7. The holding rejected a bright-line immediate-withdrawal requirement in favor of a client-centered, fact-sensitive timing judgment.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / NJ RPC 3.7 (lawyer as witness)
• DR 5-102(A); EC 5-10 (as in effect 1979)

Other opinions cited:

• NJ ACPE Opinion 233, 95 N.J.L.J. 206 (1972)

See also

• NJ ACPE Op. 439: Confidential Zoning Violations in a Real Estate Sale
• NJ ACPE Op. 451: A Board Attorney Who Resigned, Took a Private Client, Then Returned

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp421-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

103 N.J.L.J. 195, March 1, 1979

OPINION 421

Conflict of Interest Attorney-Likely Witness Withdrawal

The inquirer asks whether DR 5-102(A) requires a lawyer to withdraw from a matter short of trial where he "learns or believes, that he ought to be called as a witness," or whether he may continue to handle the matter through the discovery process.

It is true that the rule speaks in terms of withdrawal "from the conduct of the trial" and we do not believe that it was intended to require withdrawal immediately in all cases. Reference may be profitably made to our Opinion 233, 95 N.J.L.J. 206 (1972), and also to the ethical considerations underlying the rule, particularly EC 5-10 which reads as follows: Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment regardless of when the problem arises, his decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue.

In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness. In making such decision, he should determine the personal or financial sacrifice of the client that may result from his refusal of employment or withdrawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.

The interests of the client are always paramount, and the attorney must assess carefully the question of when he ought to withdraw prior to trial, bearing in mind that another attorney must ultimately be substituted and that he must have a reasonable time in which to exercise his professional judgment in advising the client.