A lawyer in my firm handled the closing and will testify at trial about what a disputed letter agreement meant. Can I still act as trial counsel for the same client in that case?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorney represented the seller in litigation over the purchase and sale of a business. The dispute concerned a letter agreement signed at closing, which provided that certain sale proceeds be held in escrow for repair costs needed to obtain a state agency license. A different lawyer in the inquiring attorney's own firm had represented the seller at the closing, and a lawyer at opposing counsel's firm had represented the buyer at the closing; both closing lawyers were expected to testify at trial about the letter agreement's intent and meaning. The inquiring attorney asked whether he or she could continue as trial counsel for the seller.
The panel applied Rule 3.7, which bars a lawyer from acting as advocate at a trial where that lawyer is likely to be a necessary witness, subject to exceptions, but separately permits a lawyer to act as advocate where a different lawyer in the same firm is likely to be called as a witness, unless precluded by Rule 1.7 or Rule 1.9. Because it was the inquiring attorney's law partner, not the inquiring attorney personally, who would testify, Rule 3.7(b) rather than 3.7(a) governed.
The panel concluded the inquiring attorney could continue as trial counsel, conditioned on the partner's testimony not being adverse to the firm's client. It quoted the Rule 3.7 commentary that representation is improper "if there is likely to be a substantial conflict between the testimony of the client and that of ... a member of the lawyer's firm." In that scenario, the panel explained, Rule 1.7's conflict-of-interest provisions would preclude the representation, and Rule 1.10's imputed-disqualification rule would disqualify the entire firm.
In practice
The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, Rule 3.7(b) permits a lawyer to remain trial counsel when a different lawyer in the same firm, rather than the trial lawyer, is expected to testify, so long as that testimony does not substantially conflict with the client's own testimony. Where the opinion finds that condition unmet, it treats the resulting conflict as governed by Rule 1.7, with disqualification of the whole firm following from Rule 1.10.
Common questions
Q: Can I try a case if a lawyer at my own firm, not me personally, is going to testify at the trial?
A: Generally yes. The panel held Rule 3.7(b) allows this, distinguishing it from Rule 3.7(a), which restricts the testifying lawyer personally from also acting as advocate.
Q: What would change that answer?
A: A substantial conflict between the client's own testimony and the firm lawyer's testimony. The panel held that scenario triggers Rule 1.7's conflict-of-interest bar, which Rule 1.10 then imputes to the whole firm.
Q: Does it matter that the opposing party's closing lawyer will also testify?
A: Not to this analysis. The panel's conclusion turned on whether the testifying lawyer was in the inquiring attorney's own firm and whether that testimony conflicted with the firm's own client, not on what the opposing side's witnesses would say.
Background and rules framework
The opinion applies Rule 3.7 (Lawyer as Witness), the Model Rule counterpart of the same number, quoting subsection (a)'s bar on a lawyer acting as advocate at a trial where the lawyer is likely to be a necessary witness (subject to the uncontested-issue, fee-value, and substantial-hardship exceptions) and subsection (b)'s allowance for a lawyer to act as advocate where a different firm lawyer is likely to testify, unless precluded by Rule 1.7 or Rule 1.9. It also applies Rule 1.7 (Conflict of Interest: Current Clients) and Rule 1.10 (Imputed Disqualification) for the scenario where the firm lawyer's testimony would conflict with the client's own.
Citations and references
Rules of Professional Conduct:
- MR 3.7 (Lawyer as Witness) / RI Rule 3.7, including commentary on substantial conflicts between client and firm-lawyer testimony
- MR 1.7 (Conflict of Interest: Current Clients) / RI Rule 1.7
- MR 1.10 (Imputed Disqualification) / RI Rule 1.10
- MR 1.9 (Conflict of Interest: Former Client) / RI Rule 1.9
See also
- Alabama State Bar Op. 1991-19: Rule 3.7, Lawyer as a Witness
- Arizona State Bar Op. 87-10: Conflicts, Lawyer as Witness
Source
- Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
- Original PDF: https://www.courts.ri.gov/Opinions/EAP%202002-05.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Final
Rhode Island Supreme Court Ethics Advisory Panel
Opinion No. 2002-05 Request No. 852
Issued June 6, 2002
Facts
The inquiring attorney represents the seller in pending litigation relating to the
purchase and sale of a business. In dispute is a letter agreement entered into by the
parties at the closing. The letter agreement provided that certain sums of money out of
the sale proceeds be held in escrow and applied to the costs of repairs or work required to
obtain a license from a state agenc y. Another lawyer in the inquiring attorney’s law firm
represented the seller at the closing; a lawyer in the opposing counsel’s law firm
represented the buyer at the closing. The two lawyers involved in the closing will testify
at the trial regarding the intent and meaning of the letter agreement.
Issue Presented
The inquiring attorney asks whether he/she may continue to act as attorney for the
seller in the pending litigation.
Opinion
Pursuant to Rule 3.7, the inquiring attorney may continue to act as attorney in the
pending litigation provided that the testimony of the other la wyer in his/her law firm is
not adverse to the firm’s client.
Reasoning
Rule 3.7 is pertinent to this inquiry. It states:
Rule 3.7. Lawyer as Witness. -
(a) A lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of
legal services rendered in the case; or
(3) disqualification of the lawyer would work
substantial hardship on the client.
Final Op. 2002-05
Page 2
(b) 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 or Rule 1.9.
The Panel concludes that pursuant to Rule 3.7(b), the inquiring attorney may
continue to act as the attorney of the seller in the pending litigation, provided that the
testimony of the other attorney in his/her law firm is not adverse to the law firm’s client.
The Panel further concludes that “if there is likely to be a substantial conflict between the
testimony of the client and that of . . . a member of the lawyer’s firm, the representation is
improper.” Commentary to Rule 3.7. In the latter instance, the conflict of interest
provisions of Rule 1.7 would preclude the representation, and Rule 1.10 entitled
“Imputed Disqualification” would disqualify the firm.
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