TX 1973

Can a law firm take a case in which one of its partners may have to testify as a witness?

Short answer: The Committee concluded that a lawyer should not accept employment in litigation when he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except in the limited circumstances DR 5-101(B) lists; DR 5-102 governs when the need to testify arises after employment begins.

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This page answers the general question as of 1973. Ezel answers yours: whether it's allowed on your facts, under the current Texas Rules of Professional Conduct, 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 Not binding precedent.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 as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The Committee was asked whether a law firm may accept employment in a lawsuit where one of the partners could be a witness. The Committee answered by setting out the governing disciplinary rules.

It quoted DR 5-101(B), under which 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, except that he may undertake the employment and testify when the testimony relates solely to an uncontested matter, solely to a matter of formality with no reason to expect substantial opposing evidence, solely to the nature and value of the legal services rendered in the case, or, as to any matter, when refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or firm as counsel. It also quoted DR 5-102, which addresses what happens after employment begins: if the lawyer learns he or a firm lawyer ought to be called as a witness on behalf of the client, he must withdraw from the trial and the firm may not continue (subject to the DR 5-101(B) exceptions), while if the lawyer may be called as a witness other than on behalf of the client, he may continue until it is apparent the testimony is or may be prejudicial to the client.

The Committee concluded that these rules clearly set out the circumstances in which a lawyer may accept or continue employment when he ought to be, or learns he may be, a witness, and that an attorney should not accept employment when he knows or it is obvious that he or a firm lawyer ought to be called as a witness, except in the enumerated circumstances.

Currency note

This opinion was issued in 1973, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The lawyer-as-witness rule is now stated in Texas Rule 3.08 and ABA Model Rule 3.7, which differ from the former DR 5-101(B)/DR 5-102 in important respects, including how the prohibition is imputed within a firm. 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: May a firm take a case in which a partner ought to be a witness?

A: Generally no. The Committee concluded that a lawyer should not accept employment when he knows or it is obvious that he or a firm lawyer ought to be called as a witness, except in the circumstances DR 5-101(B) lists.

Q: What are the exceptions under DR 5-101(B)?

A: Testimony relating solely to an uncontested matter, solely to a matter of formality unlikely to be contested, solely to the nature and value of the legal services rendered in the case, or, as to any matter, where refusal would work a substantial hardship on the client given the distinctive value of the lawyer or firm.

Q: What if the need to testify arises after the firm is hired?

A: DR 5-102 governs. If the lawyer or a firm lawyer ought to testify on behalf of the client, he must withdraw and the firm may not continue (subject to the exceptions); if the testimony would be other than on behalf of the client, he may continue until it is apparent the testimony is or may be prejudicial to the client.

Background and rules framework

The opinion interprets DR 5-101(B) (declining employment when a lawyer or firm lawyer ought to be a witness, with four exceptions) and DR 5-102 (withdrawal when the need to testify arises during the representation) of the former Texas Code of Professional Responsibility. The modern analog is Texas Rule 3.08 and ABA Model Rule 3.7 (lawyer as witness).

Citations and references

Rules of Professional Conduct:

MR 3.7 (lawyer as witness), as the modern analog
DR 5-101(B); DR 5-102 (former Texas Code of Professional Responsibility)

Source

Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-363/
Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_363.pdf

Original opinion text

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

QUESTION PRESENTED

May a law firm accept employment in a lawsuit where one of the partners could be a witness?

DR5-101(B) of the Code of Professional Responsibility provides as follows:

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, except that he may undertake the employment and he or a lawyer in his firm may testify:
If the testimony will relate solely to an uncontested matter.
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.
If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case. (Underlining ours)
DR5-102 of the Code of Professional Responsibility provides as follows:

A. If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR5-101 (B)(1) through (4).

B. If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. (Underlining ours)

We believe the above mentioned Disciplinary Rules clearly set out the circumstances in which a lawyer may accept employment or continue his employment when he ought to be a witness or when he learns that he may be a witness.

Attorney should 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 witness except under certain circumstances.

Tex. Comm. On Professional Ethics, Op. 363 (1973)

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