Can a law director try a case in which another lawyer from the same law director's office will testify for the city?
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This page answers the general question as of 2003. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.
Currency note
The Board withdrew this opinion on June 12, 2020 in Advisory Opinion 2020-05; it is retained here for research only and is not current guidance. The opinion was issued in 2003, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007), and interprets former DR 5-101(B) and DR 5-102 (the advocate-witness rule). The current rule is Ohio Prof. Cond. R. 3.7. Treat this page as historical context. Verify against current rules and the superseding opinion before relying on any specific requirement mentioned here.
Plain-English summary
The Board applied the advocate-witness rule to a city law office. It concluded that a law director or an assistant law director may not act as an advocate in a trial in which another attorney from the law director's office will testify as a witness for the city, unless the situation fits one of the exceptions in DR 5-101(B)(1) through (4), or unless a court recognizes compelling and extraordinary circumstances permitting it.
The Board treated the law director's office like a firm for purposes of the advocate-witness rule, so that a colleague's testimony for the city implicates the same concerns as the trial lawyer's own testimony would. Absent a listed exception or a court's recognition of extraordinary circumstances, the advocate from the same office should not try the case.
Common questions
Q: Can a law director try a case if an assistant from the same office will testify for the city?
A: Generally no. The opinion concluded it is improper unless a DR 5-101(B)(1)-(4) exception applies or a court recognizes compelling and extraordinary circumstances. The Board withdrew the opinion in 2020.
Q: Are there exceptions?
A: Yes. Per the opinion, the DR 5-101(B)(1) through (4) exceptions, or a court's recognition of compelling and extraordinary circumstances, can permit the representation.
Background and rules framework
The opinion interprets the former advocate-witness rule, DR 5-101(B) (refusing employment when the lawyer or a member of the lawyer's firm ought to be a witness, with exceptions in subsections (1)-(4)) and DR 5-102 (withdrawal when a lawyer learns the lawyer or a firm member ought to testify). The current rule is Ohio Prof. Cond. R. 3.7 (Model Rule 3.7), the lawyer-as-witness rule. The Board withdrew the opinion in Adv. Op. 2020-05.
Citations and references
Rules of Professional Conduct:
- Former Ohio Code of Professional Responsibility DR 5-101(B), DR 5-102
- Current analogue: Ohio Prof. Cond. R. 3.7 (Model Rule 3.7)
See also
- Ohio BPC Op. 1989-009: Prosecutor's Duty to Report a Firm Conflict
- Ohio BPC Op. 1988-008: Part-Time Prosecutors and Criminal Defense
- Ohio BPC Op. 1992-013: Prosecutor Sharing Office Space With Defense Counsel
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-03-005.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2003-5
Issued October 3, 2003
Withdrawn by Adv. Op. 2020-05 on June 12, 2020
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded
by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: It is improper for a law director or an assistant law director to act as an
advocate in a trial in which another attorney in the law director’s office will testify as a
witness on behalf of the city unless permitted under one of the exceptions in DR 5-
101(B)(1) through (4), or under compelling and extraordinary circumstances recognized
by a court.
OPINION: This opinion addresses a question regarding the application of the advocate
witness rules to government attorneys.
Is it proper for a law director or an assistant law director to act as an
advocate in a trial in which another attorney in the law director’s office
will testify as a witness on behalf of the city?
The Ohio Code of Professional Responsibility prohibits a lawyer from acting in the dual
capacities of advocate and witness in a proceeding, except under limited circumstances.
The Ohio Code (unlike the Model Rule 3.7, ABA Model Rules of Professional Conduct)
extends the advocate witness prohibitions to lawyers in the firm of the testifying attorney.
The advocate witness rules are set forth in DR 5-101(B) and DR 5-102.
DR 5-101 (B) governs acceptance of employment when a lawyer ought to be called as a
witness. Under DR 5-101(B), a lawyer may accept representation and testify on behalf of
a client only under the exceptions enumerated in DR 5-101 (B)(1) through (4).
DR 5-101. REFUSING EMPLOYMENT WHEN THE INTERESTS OF
THE LAWYER MAY IMPAIR THE LAWYER'S INDEPENDENT
PROFESSIONAL JUDGMENT.
(B) A lawyer shall not accept employment in contemplated or
pending litigation if the lawyer knows or it is obvious that the
lawyer or a lawyer in the firm ought to be called as a witness,
except that the lawyer may undertake the employment and the
lawyer or a lawyer in the firm may testify:
(1) If the testimony will relate solely to an uncontested
matter.
Op. 2003-5 2
(2) If the testimony will relate solely to a matter of
formality and there is no reason to believe that
substantial evidence will be offered in opposition to
the testimony.
(3) If the testimony will relate solely to the nature and
value of legal services rendered in the case by the
lawyer or the firm to the client.
(4) As to any matter, if refusal would work a substantial
hardship on the client because of the distinctive value
of the lawyer or the firm as counsel in the particular
case.
DR 5-102(A) governs continuance of employment when a lawyer learns that the lawyer
or a lawyer in the firm ought to be called as a witness on behalf of the client. Under DR
5-102(A), a lawyer may continue representation of the client and he/she or a lawyer in the
firm may testify on behalf of the client only under the exceptions enumerated in DR 5-
101(B)(1) through (4).
DR 5-102. WITHDRAWAL AS COUNSEL WHEN THE LAWYER
BECOMES A WITNESS.
(A) If, after undertaking employment in contemplated or pending
litigation, a lawyer learns or it is obvious that he [she] or a lawyer
in his [her] firm ought to be called as a witness on behalf of his
[her] client, he [she] shall withdraw from the conduct of the trial
and his [her] firm, if any, shall not continue representation in the
trial, except that he [she] may continue the representation and he
[she] or a lawyer in his [her] firm may testify in the circumstances
enumerated in DR 5-101(B)(1) through (4).
DR 5-102(B) governs continuance of employment when the lawyer learns he/she or a
lawyer in the firm ought to be called as a witness against the client. Under DR 5-102(B)
a lawyer may continue representation until it is apparent his/her testimony is or may be
prejudicial to the client. DR 5-102(B) is not germane to this opinion.
Underlying the question raised, is the issue of whether a law director’s office is a “firm”
for purposes of DR 5-101(B) and 5-102(A). If a law director’s office is a “firm” then the
restrictions on representation imposed upon a testifying law director or a testifying
assistant law director will extend to all attorney members of a law director’s office.
There is a definition of “firm” in the Ohio Code of Professional Responsibility. A
“‘[l]aw firm’ includes a legal professional association, corporation, legal clinic, limited
liability company, registered partnership, or any other organization under which a lawyer
may engage in the practice of law pursuant to the Supreme Court Rules for the
Government of the Bar of Ohio.” Section 2, Definitions, Ohio Code of Professional
Responsibility.
Op. 2003-5 3
There is also a definition of “firm” in the ABA Model Rules of Professional Conduct.
“‘Firm’ or ‘law firm’ denotes a lawyer or lawyers in a law partnership, professional
corporation, sole proprietorship or other association authorized to practice law; or
lawyers employed in a legal services organization or the legal department of a
corporation or other organization.” Rule 1.0(c), ABA Model Rules of Professional
Conduct.
Commentary to the ABA Model Rules indicates that a government office is a firm.
“With respect to the law department of an organization, including the government, there
is ordinarily no question that the members of the department constitute a firm within the
meaning of the Rules of Professional Conduct.” ABA Model Rule 3.7, Comment 3.
Unlike Ohio’s disciplinary rules, under the model rules, a “firm” is not automatically
disqualified from representing a client when a firm member testifies. ABA Model Rule
3.7 (b) states: “A lawyer may act as advocate in a trial in which another lawyer in the
lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule
1.7 [Conflicts of Interest: Current Clients] or Rule 1.9 [Duties to Former Clients].”
In the Ohio Code of Professional Responsibility there is no explicit language regarding
whether a government office constitutes a “firm,” for purposes of the advocate witness
rules. It is instructive to look at ABA, Informal Opinion 1405 (1977) because that
opinion interprets DR 5-101 of the ABA Model Code of Professional Responsibility,
upon which Ohio’s DR 5-101 is modeled. In Informal Opinion 1405, the ABA Standing
Committee on Ethics and Professional Responsibility responded to an inquiry regarding
whether it was ethical for an Assistant Attorney General in the civil division of the
Attorney General’s office to represent an agency at an appeal hearing when another
Assistant Attorney General in the civil division was a witness for the agency. The
committee stated that DR 5-101(B) governed the inquiry. ABA committee advised that
the representation was ethical. Under the facts presented the proposed testimony related
solely to formal procedural steps taken and the exception in DR 5-101(B)(2) applied.
ABA, Informal Op. 1405 (1977). Thus, the advocate witness rule, DR 5-101, applied to
the testifying government attorney as well as to attorneys in the office.
Most states have now adopted the ABA Model Rules, but past opinions interpreting the
ABA Model Code of Professional Responsibility took different approaches to the
application of the advocate witness rule to attorneys in government offices. Government
offices are not treated as firms for purposes of DR 5-101(B) and or DR 5-102. See e.g.
West Virginia State Bar, Op. 85-2 (1985) (prosecuting attorney’s office). Government
attorney offices are treated as firms for purposes of DR 5-101(B) and or 5-102. See e.g.,
Kansas Bar Assn, Op. 82-37 (1982) (city attorney’s staff); State Bar of Texas, Op. 399
(1980) (district attorney’s office). The substantial hardship exception of DR 5-101(B)(4)
applies to government offices. See e.g., Vermont Bar Assn, Op. 92-05 (1992) (deputy
state attorney’s office).
No Ohio case law squarely addresses whether a government attorney office constitutes a
“firm” for purposes of the DR 5-101(B) and 5-102(A). Nevertheless, three Supreme
Court of Ohio cases provide instruction to Ohio attorneys as to the proper application of
the advocate witness rule. State v. Coleman (1989), 45 Ohio St.3d 298; Mentor Lagoons,
Op. 2003-5 4
Inc. v. Rubin (1987), 31 Ohio St.3d 256; 155 North High, Limited v. Cincinnati Insurance
Company (1995), 72 Ohio St.3d 423.
In State v. Coleman (1989), 45 Ohio St. 3d 298, 301-02, the Supreme Court of Ohio
found without merit an appellant’s assertion that he was denied a fair trial because the
prosecuting attorney was permitted to testify during the guilt phase of the trial. The
testifying prosecuting attorney took no part in the trial of the case, but testified as a
witness to identify handwritten motions prepared by the appellant. Id. at 301. The court
found that the trial court did not err in admitting the testimony and that it was not a
violation of DR 5-102 because “this testimony was necessary to lay a foundation for the
expert’s testimony, and the prosecuting attorney was the only person available to testify
as to the identity of the author of the motions.” Id. at 302.
The Coleman court stated that a prosecutor’s testimony should be avoided, but cited
United States v. Johnston 690 F.2d 638, 644 (7th Cir. 1982) for the proposition that a
prosecutor’s testimony may be “permitted in extraordinary circumstances and for
compelling reasons, usually where the evidence is not otherwise available.” Coleman, 45
Ohio St.3d at 302.
The Coleman court stated:
We recognize that a prosecuting attorney should avoid being a witness in a
criminal prosecution, but where it is a complex proceeding where
substitution of counsel is impractical, and where the attorney so testifying
is not engaged in the active trial of the cause and it is the only testimony
available, such testimony is admissible and not a violation of DR 5-102.
Id. at 302.
In Mentor Lagoons, Inc. v. Rubin (1987), 31 Ohio St.3d 256, the Supreme Court of Ohio
addressed the issue of whether a trial court may summarily refuse to allow an attorney to
testify in a case in which he is representing a litigant on the grounds that such testimony
may be in violation of the Code of Professional Responsibility. The court concluded:
[W]hen an attorney representing a litigant in a pending case requests
permission or is called to testify in that case, the court shall first determine
the admissibility of the attorney’s testimony without reference to DR 5-
102(A). If that court finds that the testimony is admissible, then that
attorney, opposing counsel, or the court sua sponte, may make a motion
requesting the attorney to withdraw voluntarily or be disqualified by the
court from further representation in the case. The court must then
consider whether any of the exceptions to DR 5-102 are applicable and,
thus, whether the attorney may testify and continue to provide
representation. In making these determinations, the court is not deciding
whether a Disciplinary Rule will be violated, but rather preventing a
potential violation of the Code of Professional Responsibility.
Id. at 260.
Op. 2003-5 5
In 155 North High, Limited v. Cincinnati Insurance Company, (1995) 72 Ohio St.3d 423
the Supreme Court of Ohio addressed the issue of whether a trial court abused its
discretion by allowing a party’s attorney to serve as both an advocate and witness at trial.
The court held:
DR 5-104(B)(4) is an exception to the general rule of DR 5-102(A) that an
attorney cannot serve as both an advocate and witness. The attorney who
intends to invoke this exception has the burden to prove that his or her
services provide a distinctive value and that his or her disqualification
would work a substantial hardship on his or her client. Neither familiarity
with the case nor mere added expenses are sufficient to prove this
exception.
Id. at 429-30.
The following observations arise from these cases. First, while testimony by a prosecutor
should be avoided, it may be necessary in extraordinary circumstances and for
compelling reasons, such as in a criminal matter where it is a complex proceeding, where
substitution of counsel is impractical, and where the attorney so testifying is not engaged
in the active trial of the cause and it is the only testimony available (the Coleman
exception). Second, testimony by a prosecutor or members of the prosecuting attorney’s
office is appropriate if it meets one of the exceptions in DR 5-101(B) (1) through (4).
Third, during proceedings, courts will determine whether the DR 5-101(B) exceptions
allow an attorney or members of the attorney’s firm, including government offices, to
testify and to continue representing the client.
The well-stated reasons for limiting the dual role of advocate and witness are in EC 5-9.
EC 5-9 Occasionally a lawyer is called upon to decide in a particular case
whether he will be a witness or an advocate. If a lawyer is both counsel
and witness, he becomes more easily impeachable for interest and thus
may be a less effective witness. Conversely, the opposing counsel may be
handicapped in challenging the credibility of the lawyer when the lawyer
also appears as an advocate in the case. An advocate who becomes a
witness is in the unseemly and ineffective position of arguing his own
credibility. The roles of an advocate and of a witness are inconsistent; the
function of an advocate is to advance or argue the cause of another, while
that of a witness is to state facts objectively.
The ethical reasons for restrictions on serving as an advocate and a witness apply with
equal force to attorneys in government offices and to attorneys in private practice. In
addition, with government attorneys there are special concerns. On one hand, the
prestige of the government may enhance the credibility of the government attorney as a
witness, but on the other hand, the risk of impeachment or otherwise being found not
credible may disgrace the government office. See U.S. v. Johnston 690 F2d 638, 643 (7th
Cir. 1982) (en banc). As described in United States v. Birdman, 602 F.2d 547, 553-555
(3rd Cir. 1979), there is the risk that a prosecutor may not be a fully objective witness; the
risk that the prestige of a government attorney’s office will artificially enhance his
credibility, the risk of confusing the jury as to whether the prosecutor is speaking in the
Op. 2003-5 6
capacity of a prosecutor or a witness; and the need to preserve the public confidence in
the process of justice. “The chief fear which underlies the ethical rule, it is commonly
acknowledged, is not that the testifying prosecutor actually will overreach a hapless
defendant but that he will Appear to a skeptical public to have done so.” Birdman, 602
F.2d at 554 (footnote omitted).
As explained in EC 5-10, decisions regarding whether a lawyer represents and/or testifies
in a matter arise at different times—before accepting representation and during
representation-but are guided by the same considerations.
EC 5-10 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. (Emphasis added.)
The Board finds no basis for distinguishing attorneys in a government office, from
attorneys in a private law firm for purposes of the advocate witness rule. Thus, it is the
Board’s view that a government office constitutes a “firm” for purposes of the advocate
witness rule. Ohio’s advocate witness rule restricts representation by a testifying attorney
and his firm; therefore, representation by an attorney in a law director’s office in a matter
in which there is testimony by another attorney in the law director’s office is not proper
unless permitted under one of the DR 1-101(B)(1) through (4) exceptions or under
compelling and extraordinary circumstances as recognized by a court.
In conclusion, the Board advises as follows. It is improper for a law director or an
assistant law director to act as an advocate in a trial in which another attorney in the law
director’s office will testify as a witness on behalf of the city unless permitted under one
of the exceptions in DR 5-101(B)(1) through (4), or under compelling and extraordinary
circumstances as recognized by a court.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
Op. 2003-5 7
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.
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