Can a law firm represent all the co-defendants in a lawsuit when one defendant is a firm member who is known to be a witness on disputed facts?

Plain-English summary

A plaintiff sued four defendants, one of whom was a member of the law firm asked to represent all of them. It was known that the firm-member defendant would be a witness on contested material fact issues affecting all defendants, as well as on contested material fact issues raised in another defendant's counterclaim against the plaintiff. The opinion assumed none of the exceptions in DR 5-101(B) applied and that the firm member's status as a witness on these issues was known at the time the firm was offered the joint employment.

The Committee concluded that DR 5-101(B) proscribes the firm's employment on these facts. It explained that DR 5-102 (which addresses withdrawal when a lawyer learns he ought to be called as a witness) did not apply, because here the witness role was known before the employment rather than learned afterward. The opinion cited Ethics Opinion 363 (1973) and distinguished Ethics Opinion 368 (1974), where representation of a firm member who was a party-witness had been approved but representation by the firm of other parties was not then addressed.

Currency note

This opinion was issued in 1987, 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 rule on a lawyer serving as both advocate and witness is Rule 3.08, and the closest ABA analog is Model Rule 3.7. 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 Treat this page as historical context, not current guidance.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 firm represent all co-defendants when one is a firm member who will testify?

A: Per the opinion, no. The Committee concluded DR 5-101(B) bars the firm's employment where it is known before the engagement that the firm-member defendant will be a witness on contested material fact issues.

Q: Why did DR 5-102 not apply?

A: The Committee explained that DR 5-102 addresses situations where a lawyer learns after taking the case that he ought to testify. Here the witness role was known beforehand, so DR 5-101(B), not DR 5-102, controlled.

Q: How did the Committee treat Opinion 368?

A: It distinguished Opinion 368, where representation of a firm member who was a party-witness was approved but representation by the firm of the other parties was not then addressed. Opinion 447 reached the broader question of representing all defendants.

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 member of the firm ought to be called as a witness) and DR 5-102 (withdrawal when that becomes apparent during the representation). The closest current concepts are Texas Rule 3.08 and Model Rule 3.7 on the lawyer as witness. The analysis turns on the timing of the knowledge: a witness role known before employment is governed by the rule against accepting the engagement.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• Texas Professional Ethics Committee Opinion 363 (1973)
• Texas Professional Ethics Committee Opinion 368 (1974) (distinguished)

See also

• TX Ethics Op. 475: Opponent Calling a Lawyer as Witness
• TX Ethics Op. 471: Firm Handling an Appeal With a Witness Lawyer
• TX Ethics Op. 468: Attorney Representing His Spouse While Testifying

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-447/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_447.pdf

Original opinion text

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

QUESTION PRESENTED

Should a law firm accept and continue employment on behalf of all Defendants in a suit brought against multiple Defendants, one of whom is a member of such Law Firm, when it is known that such Law Firm member will be a witness under the facts stated below?

STATEMENT OF FACTS

Plaintiff has brought suit against four Defendants, one of whom is a member of such Law Firm. It is known that such Law Firm member, who is one of Defendants, will be a witness on contested material fact issues affecting all Defendants, as well as a witness on contested material fact issues involved in the counterclaim against Plaintiff of one of the other Defendants in the suit. It is assumed that none of the exceptions enumerated in DR 5-101(B) are applicable to these facts. It is further assumed that such facts concerning such Law Firm member being a witness on all such contested issues are known at the time of the proffered employment of the Law Firm on behalf of all four Defendants.

DISCUSSION

DR 5-101(B) proscribes employment by the Law Firm under the facts stated above. DR 5-102 is not applicable to such facts because it is known before employment, and not learned thereafter, that such member of the Law Firm would be such a witness. See Ethics Opinion 363 (1973). The facts stated in Ethics Opinion 368 (1974) are distinguishable from the present facts because, in Opinion 368, representation of a law firm member who was a party-witness was approved but representation by the firm of other parties was not then addressed.

CONCLUSION

DR 5-101(B) proscribes employment by the Law Firm under the facts stated above. DR 5-102 is not applicable to such facts because it is known before employment, and not learned thereafter, that such member of the Law Firm would be such a witness. See Ethics Opinion 363 (1973). The facts stated in Ethics Opinion 368 (1974) are distinguishable from the present facts because, in Opinion 368, representation of a law firm member who was a party-witness was approved but representation by the firm of other parties was not then addressed.

Tex. Comm. On Professional Ethics, Op. 447 (1987)