Can a lawyer represent his own law partner in a lawsuit when that partner will testify as a party-witness?

Plain-English summary

A had sued B, C, and D. Defendant B was a partner in a law firm and asked one of his own partners to represent him in the litigation. B would clearly be a material witness, testifying on many contested allegations. The area of law was narrow, the partner had some experience in it, and B had particular confidence in that partner and preferred not to go outside the firm. While the partner would represent only B, B's firm might receive fees from a fund controlled by another defendant. The question was whether one firm member representing B was proscribed, and whether the answer would change if B's firm received no compensation for the partner's work.

The Committee concluded that the disciplinary rules do not prohibit an attorney from representing his law partner or associate in a suit where the partner is a party, even though the partner is expected to testify at trial. It emphasized, however, that this conclusion applies only where the law partner or associate is a party-witness, and does not affect the prohibition against representing a law partner or associate who is to be a fact witness only.

Currency note

This opinion was issued in 1974, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. A lawyer's service as both advocate and witness is now governed by Texas Rule 3.08 and ABA Model Rule 3.7, which approach the advocate-witness problem differently from former DR 5-101(B). 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 Treat this page as historical context, not current guidance.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: Could a lawyer represent his own law partner who will testify as a party in the case?

A: Yes. The Committee concluded it is not improper to represent a law partner or associate who is a party in the suit, even though the partner will be called as a witness, because the partner is a party-witness.

Q: Does the same hold if the partner would be only a fact witness?

A: No. The Committee was firm that its conclusion applies only to a party-witness and does not affect the prohibition against representing a law partner or associate who would be a fact witness only.

Q: Did the firm's possible compensation change the result?

A: The Committee's stated conclusion turned on the party-witness versus fact-witness distinction rather than on the firm's compensation; it did not rest the permission on whether the firm was paid.

Background and rules framework

The opinion interprets DR 5-101(B) of the former Texas Code of Professional Responsibility, which addressed a lawyer accepting employment when he or a member of his firm would be called as a witness, and its exceptions. The Committee drew the line at whether the law partner is a party-witness (permitted) or a fact witness only (still prohibited). The modern analog is Texas Rule 3.08 and ABA Model Rule 3.7 on the lawyer as witness.

Citations and references

Rules of Professional Conduct:

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

See also

• TX Ethics Op. 430: District Attorney's Office Attorney Representing a Colleague With an Office Witness
• TX Ethics Op. 447: Firm Representing Codefendants When a Member Is a Known Witness
• TX Ethics Op. 399: Prosecutor as Witness From the Same District Attorney's Office

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-368/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_368.pdf

Original opinion text

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

QUESTION PRESENTED

The fact underlying this opinion request are as follows: A has brought suit against B, C and D. One of the defendants, B, is a partner in a law firm. B has requested one of his partners to represent him in the litigation. There is no question but that B will be a material witness in the litigation and will be called upon to testify with regard to many of the contested allegations in the suit. The areas of law involved in the litigation is rather narrow and the partner B has requested to represent him has had some experience in the field. Also, because of their relationship, B has particular confidence in the partner he has requested as his attorney and he would also clearly prefer not to go outside his own law firm. While the partner in B's firm will only represent B, B's firm may receive fees from a fund controlled by another defendant. The question has been raised as to whether the representation of B by one of the members of his firm is the type of conduct or activity proscribed under the above referenced canon contained in the present Code of Professional Responsibility. A subsidiary question is whether the result would be different if B's firm were to receive no compensation for the activities of its partner in behalf of B?

STATEMENT OF FACTS

REPRESENTATION OF LAW PARTNER OR ASSOCIATE WHO WILL BE A PARTY- WITNESS
It is not improper for an attorney to represent his law partner or associate in a suit where the partner or associate will be a party-witness in such suit.

Code of Professional Responsibility: DR 5101 (B)

The committee is of the opinion that the disciplinary rules do not prohibit an attorney from representing his law partner or associate in a suit where the law partner is a party, even though such law partner or associate is expected to be called as a witness during the trial of such cause. The committee is firmly of the opinion, however, that this would apply only in the situation where said law partner or associate is a party-witness and does not affect the prohibition as to the representation of a law partner or associate where such partner or associate is to be a fact witness only.

Tex. Comm. On Professional Ethics, Op. 368 (1974)