TNBPR September 3, 1981

Can a lawyer who serves as conservator and must testify against a bank in his conservator suit be represented by his own law firm?

Short answer: No. The opinion concluded that where a lawyer-conservator will be required to testify in his own suit against a bank that dishonored the conservatorship account after a non-lawyer employee forged his signature, it is improper for him to be represented by a member of his own law firm, because DR 5-101(B) bars a lawyer from accepting employment in litigation he knows or it is obvious he or a firm lawyer ought to be called as a witness, and none of the rule's exceptions applied.

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This page answers the general question as of 1981. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

A partner in a law firm served as conservator managing a ward's financial affairs. A non-lawyer employee of the firm forged the lawyer's signature on checks drawn on the conservator account, misappropriating the ward's funds. The drawee bank refused to credit the conservatorship account for the forged instruments, so the lawyer-conservator sued the bank to impose liability for honoring the forged checks. The bank resisted the suit, and the lawyer-conservator would be required to testify in the litigation.

The Board concluded that under these circumstances it is improper for the lawyer-conservator to be represented by a member of his own law firm. Disciplinary Rule 5-101(B) provides that a lawyer shall not accept employment in contemplated or pending litigation if he knows, or it is obvious, that he or a lawyer in his firm ought to be called as a witness. The Board found no exception to the rule applicable to this situation.

Common questions

Q: Can my own law firm represent me in a suit where I know I will have to testify?

A: No, if the rule's exceptions do not apply. The opinion concludes "it is improper for the lawyer-conservator to be represented by a member of his own law firm" and quotes DR 5-101(B): "A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness."

Q: Were there any exceptions available in this case?

A: No. The opinion states "it does not appear that any of the exceptions to this rule apply in the present instance."

Q: Does the rule apply even though the lawyer is the party bringing the suit, not opposing counsel?

A: Yes. The opinion draws no distinction based on which side brought the case; DR 5-101(B) turns on whether the lawyer or a firm lawyer "ought to be called as a witness," which was obvious here because the lawyer-conservator himself would have to testify against the bank.

Background and rules framework

The opinion applied Disciplinary Rule 5-101(B) of the Tennessee Code of Professional Responsibility, the lawyer-as-witness rule barring a firm from accepting litigation where a firm lawyer ought to be called as a witness. The modern correlate is Model Rule 3.7 (lawyer as witness), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

DR 5-101(B) (lawyer as witness), Tennessee Code of Professional Responsibility
Model Rule 3.7 (lawyer as witness), modern correlate

Source

Landing page: https://www.tbpr.org/ethic_opinions/81-f-19

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

81-F-19 - Representation of law firm partner/witness

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-19

An inquiry has been made concerning the propriety of an attorney representing a partner in his law firm in litigation when the partner or other member of the firm will be called as a witness.

A partner in a law firm served as a conservator and managed the financial affairs of a ward. A non-lawyer employee of the firm forged the lawyer's signature to checks drawn on the conservator account, and thereby misappropriated funds of the ward.

The drawee bank refused to credit the conservator of the account for the forged instruments. The lawyer-conservator filed suit against the bank seeking to impose liability on it for honoring the forged instruments. The bank is resisting the suit. The lawyer-conservator will be required to testify in his suit against the bank.

Under these circumstances, it is improper for the lawyer-conservator to be represented by a member of his own law firm. Disciplinary Rule 5-101(B) provides:

A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness ....

It does not appear that any of the exceptions to this rule apply in the present instance.

This 3rd day of September, 1981.

ETHICS COMMITTEE:

Randall Burcham

W. H. Lassiter

George Morrow

APPROVED AND ADOPTED BY THE BOARD

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