Can a lawyer try a case when a partner in the same firm, who drafted the disputed instruments, will be a material witness?

Plain-English summary

Attorney A's law partner, B, had drafted a will, deed, and contract for a client. After the client died, the instruments were attacked on grounds of fraud, undue influence, and mental incapacity. B's testimony would be important to establish the client's mental capacity and the circumstances of execution, although B would not appear as trial counsel. The inquiry asked whether A could ethically represent the proponents of the will and the beneficiaries of the deed and contract.

A majority of the Committee concluded that A could not. Under Texas Canon 16, it is improper for a lawyer to accept a case knowing he will be a material witness, though a lawyer may testify in a case he is trying if the necessity arose during trial. The Committee found B to be a material witness in this situation. It applied the principle that, generally, one member of a law firm can perform no act that his partner cannot ethically perform, citing ABA Opinion 33 and Texas Opinions 187, 195, and 197. The majority therefore held it a violation of Canon 16 for A to accept the employment, citing ABA Opinion 50 on a similar fact situation and contrasting Texas Opinion 208.

A minority would have applied the limited modification in ABA Opinion 220: although B was disqualified, A would not be, because B's testimony was not inconsistent with the client's position, related to matters arising in the course of his professional duties, and forbidding A's representation would deprive the client of the firm's intimate familiarity with the matter. The minority would have left acceptance to A's good taste and judgment. The vote was 5-4.

Currency note

This opinion was issued in 1961, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 try a case when a partner will be a material witness?

A: Under this opinion, no, by a 5-4 majority. The Committee held it a violation of Canon 16 for a lawyer to accept a case in which his law partner would appear as a material witness.

Q: Why was the partner's status treated as the lawyer's problem?

A: The Committee applied the principle that one member of a law firm generally can perform no act his partner cannot ethically perform, citing ABA Opinion 33 and Texas Opinions 187, 195, and 197.

Q: Did any members disagree?

A: Yes. A four-member minority would have followed ABA Opinion 220, under which the partner is disqualified but the trial lawyer is not, where the witness-partner's testimony is consistent with the client's position and arose in his professional duties, leaving acceptance to the lawyer's judgment.

Background and rules framework

The opinion interprets former Texas Canon 16, which addressed a lawyer appearing as a witness for a client, together with the firm-imputation principle that a partner's ethical disability extends to the firm. The modern analogs are ABA Model Rule 3.7, on the lawyer as witness, and Model Rule 1.10, on imputation of conflicts within a firm.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness), as the modern analog
• MR 1.10 (imputation of conflicts), as the modern analog
• Texas Canon 16 (former canon)

Other opinions cited:

• ABA Opinion 33: one firm member cannot do what a partner cannot ethically do
• ABA Opinion 50: representation barred where a partner is a material witness
• ABA Opinion 220: limited modification permitting the partner to try the case
• Texas Opinions 187, 195, 197: firm-imputation principle
• Texas Opinion 208: cited by contrast

See also

• TX Ethics Op. 368: Representing a Partner-Witness
• TX Ethics Op. 363: Firm Lawyer as a Possible Witness
• TX Ethics Op. 439: Will-Drafting Lawyer as Witness
• TX Ethics Op. 682: Firm Advocate When a Colleague Testifies

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-234/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_234.pdf

Original opinion text

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

QUESTION PRESENTED

Is it unethical for attorney A to represent the proponents of a will and beneficiaries of a deed and contract in the following situation?

A's law partner, B, drafted a will, deed and contract for a client. After death of the client, the instruments were attacked on the alleged grounds of fraud, undue influence and mental incapacity of the deceased client when the instruments were executed. B's testimony will obviously be important in establishing the mental capacity at that time and to establish the circumstance surrounding the execution of the instruments. B will not appear in the case as attorney.

18 Baylor L. Rev. 314 (1966)

APPEARANCE OF AN ATTORNEY AS WITNESS FOR CLIENT - TRIAL CONDUCTED BY ATTORNEY'S LAW PARTNER
An attorney may not ethically represent a client in a litigated matter in which the attorney's law partner will appear as a material witness.

Canon 16.

It is improper for a lawyer to accept a case knowing he will be a material witness, even though he may testify in a case in which he is representing a party provided the necessity therefor arose during trial. See Texas Canon 16. B is a material witness in this situation. Generally speaking, one member of a law firm can perform no act which his law partner cannot ethically perform. See A.B.A. Opinion 33 and Texas Opinions 187, 195 and 197. Therefore, the majority of the committee members are of the opinion that it is a violation of Texas Canon 16 for A to accept such employment in this situation. See A.B.A. Opinion 50, involving a very similar fact situation. And cf. Texas Opinion 208.

A minority of the committee believes the limited modification contained in A.B.A. Opinion 220, involving a similar situation, to be applicable: although B is disqualified, his partner, A, is not disqualified because (1) B's testimony is not inconsistent with the client's position, (2) B's testimony relates to matters occurring during the course of his professional duties, and (3) to forbid A to represent the client would deprive the client of the knowledge and experience of a firm having intimate familiarity with the details of the matters in litigation. Accordingly, the minority would hold that A is not disqualified and acceptance of the case should be left to the good taste and judgment of A. (5-4.)

Tex. Comm. On Professional Ethics, Op. 234 (1961)