Can one lawyer in a district attorney's office defend a colleague from that office in a federal suit when a lawyer in the office will be a witness?

Plain-English summary

The inquiry asked whether an attorney employed by a district attorney's office may represent, without additional compensation, another attorney in the office who is being sued in federal court for alleged acts as an attorney in that office, where the defendant attorney ought to be called as a witness, and whether such representation is permissible if the representing attorney or another office attorney ought to be a witness.

The Committee set out DR 5-101(B), which generally bars accepting employment in litigation when the lawyer or a lawyer in his firm ought to be a witness, subject to exceptions (uncontested matters, formalities, the nature and value of legal services, or substantial hardship from the lawyer's distinctive value). It noted Opinion 399 treats attorneys in a particular district attorney's office as members of the same firm for DR 5-102(A), and that Opinion 368 allows a lawyer to represent a partner or associate who will be a party-witness, but not where a firm lawyer other than the party is expected to be a witness.

Applying these, the Committee concluded that an office attorney may represent the defendant colleague if no office lawyer other than the defendant is expected to be a witness. If the representing attorney knows or it is obvious that an office lawyer other than the defendant ought to be a witness, Opinion 399's firm analysis applies and no office attorney may represent the defendant unless a DR 5-101(B) exception applies. If the witness issue arises only after representation begins, DR 5-102(A) requires withdrawal where the representing attorney or another office lawyer (other than the defendant) ought to testify for the defendant, unless an exception applies, and DR 5-102(B) requires withdrawal where such testimony may be prejudicial to the defendant. The Committee expressed no opinion on any restrictions under federal or state law, and voted 9-0.

Currency note

This opinion was issued in 1986, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rules on a lawyer as witness and imputed disqualification are Rules 3.08 and 1.09, with closest ABA analogs Model Rules 3.7 and 1.10. Subsequent rule changes 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 DA-office lawyer defend a colleague who will be a witness?

A: Per the opinion, yes, if the defendant colleague is the only office lawyer expected to be a witness. The Committee read Opinion 368 to permit representing a colleague who is a party-witness.

Q: What if a different office lawyer ought to be a witness?

A: Then, treating the office as a firm under Opinion 399, no office attorney may represent the defendant unless one of the DR 5-101(B) exceptions applies.

Q: What if the witness issue surfaces after the case begins?

A: DR 5-102(A) requires withdrawal where the representing or another office lawyer (other than the defendant) ought to testify for the defendant, absent an exception, and DR 5-102(B) requires withdrawal where the testimony may prejudice the defendant.

Background and rules framework

The opinion interprets DR 5-101(B) of the former Texas Code of Professional Responsibility (declining employment when the lawyer or a firm lawyer ought to be a witness) and DR 5-102(A) and (B) (withdrawal when that becomes apparent), treating a district attorney's office as a firm per Opinion 399. The closest current concepts are Texas Rules 3.08 and 1.09 and Model Rules 3.7 and 1.10. The analysis turns on whether the only office witness is the defendant or whether another office lawyer must testify.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• MR 1.10 (imputation of conflicts)
• DR 5-101(B), DR 5-102(A), DR 5-102(B), Texas Code of Professional Responsibility

Other opinions cited:

• Texas Professional Ethics Committee Opinion 399 (district attorney's office treated as a firm for DR 5-102(A))
• Texas Professional Ethics Committee Opinion 368 (representing a firm colleague who is a party-witness)

See also

• TX Ethics Op. 447: Firm-Member Defendant as a Known Witness
• TX Ethics Op. 441: Government Office Conflict and Screening of Colleagues

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-430/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_430.pdf

Original opinion text

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

QUESTION PRESENTED

May an attorney employee of a district attorney's office represent without additional compensation another attorney in the office who is being sued in federal court for alleged acts as an attorney in such office if the attorney defendant ought to be called as a witness? Is such representation permissible if the attorney conducting the representation or another attorney in the office ought to be called as a witness in the case?

DISCUSSION

Disciplinary Rule ("DR") 5-101(B) of the Texas Code of Professional Responsibility provides that a lawyer should not, with certain exceptions, accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that he or a lawyer in his firm ought to be called as a witness in the case. The exceptions set forth in DR 5-101(B) are as follows: "(1) If the testimony will relate solely to an uncontested matter. "(2) 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. "(3) 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. "(4) 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."

This Committee has held that DR 5-102(A) (which applies when a lawyer learns or it is obvious after undertaking employment that he or a lawyer in his firm might be a witness on behalf of his client) is applicable to attorneys in a particular district attorney's office as if the attorneys were members of the same law firm. Texas Professional Ethics Committee Opinion 399.

This Committee has also held, in Texas Professional Ethics Committee Opinion 368, that in the case of attorneys in a law firm DR 5-101(B) does not prohibit an attorney's undertaking to represent in a lawsuit a partner or associate in the attorney's firm if the partner or associate will be a party witness in the suit. Opinion 368 does not, however, permit a lawyer to represent another lawyer in his firm in a lawsuit where a firm lawyer other than the party is expected to be a witness.

With respect to the questions presented, the provisions of the Texas Code of Professional Responsibility and the previous opinions of this Committee discussed above would not prohibit an attorney in a district attorney's office from representing another attorney in that office who is a defendant in a federal court suit relating to the defendant's actions in the district attorney's office if no lawyer in the district attorney's office other than the attorney defendant is expected to be called as a witness. However, if the representing attorney knows or it is obvious that an attorney from the district attorney's office other than the defendant attorney ought to be called as a witness, the analysis of Opinion 399 discussed above would apply and no attorney from the district attorney's office (other than the defendant attorney) could undertake to represent the defendant attorney unless one of the exceptions set forth in DR 5-101(B) was applicable.

In the event that, after an attorney in the district attorney's office has undertaken representation of the defendant attorney, the attorney learns or it is obvious that he or another attorney in the district attorney's office (other than the defendant attorney) ought to be called as a witness on behalf of the defendant attorney, DR 5-102(A) would require the attorney to withdraw from the representation unless one of the exceptions of DR 5-101(B) quoted above applies. If, after representation is commenced, the representing attorney learns or it is obvious that an attorney in the district attorney's office other than the defendant attorney may be called as a witness other than for the defendant attorney, withdrawal would not be required unless it becomes apparent that the attorney's testimony is or may be prejudicial to the interest of the defendant attorney. DR 5-102(B).

CONCLUSION

Under the Texas Code of Professional Responsibility one attorney in a district attorney's office may undertake representation of another attorney in the office who is a defendant in a suit in federal court relating to matters arising in the district attorney's office unless the representing attorney knows or it is obvious that he or another attorney in the office other than the defendant attorney ought to be called as a witness in the suit. If the attorney who is considering representation knows or it is obvious that an attorney other than the defendant attorney ought to be called as a witness, the Texas Code of Professional Responsibility would not permit any attorney from the district attorney's office (other than the defendant attorney) to represent the defendant attorney unless one of the exceptions set forth in DR 5-101(B) was applicable. If the question of testimony by an attorney from the district attorney's office arises only after an attorney from such an office has undertaken the representation, the standards of DR 5-102(A) and (B) would determine whether the attorney's withdrawal would be required. No opinion is expressed by the Committee as to whether any restrictions apply under applicable federal or state law with respect to the representation that is the subject of this opinion. (9-0)

Tex. Comm. On Professional Ethics, Op. 430 (1986)