Does a lawyer have to withdraw from representing a client when the opposing party says it intends to call the lawyer as a witness?

Plain-English summary

A corporate client, A, was represented in contract negotiations by the same attorney and firm that had represented it for many years. In ensuing litigation over whether a contract existed, the opposing party, B, contended that A's attorney would have to be called as a witness because he was privy to the negotiations, and so the attorney and his firm should recuse. The attorney's testimony would be mostly cumulative, the facts he might testify to were not strongly disputed, and the primary controversy concerned the legal effect of the parties' discussions. A wanted to keep the same firm. The question was whether the attorney had to withdraw because the defendant might call him as a witness.

The Committee concluded the answer was no. First, the lawyer was not being called as a witness by his client and was not a witness "necessary to establish essential facts on behalf of his client" under Rule 3.08. Second, the testimony, when called by the other side, would not be adverse to the client (Rule 3.08(b)).

The Committee relied on the Texas Supreme Court's decision in Ayres v. Canales, 790 S.W.2d 554 (Tex. 1990), quoting its statement that Comment 10 to Rule 3.08 cautions the rule should not be used as a tactical weapon to deprive an opposing party of the lawyer of its choice, and that a trial court should require a party seeking disqualification to demonstrate actual prejudice to itself from the opposing lawyer's service in dual roles.

Currency note

This opinion was issued in 1991, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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 Treat this page as historical context, not current guidance.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: Does a lawyer have to withdraw if the other side intends to call him as a witness?

A: The Committee concluded no. Rule 3.08 addresses a lawyer who is a witness necessary for his own client; being called by the opposing party, on testimony that is not adverse to the client, does not require withdrawal.

Q: Can a party use the lawyer-witness rule to disqualify opposing counsel?

A: Per the opinion's reliance on Ayres v. Canales, the rule should not be used as a tactical weapon; a party seeking disqualification must demonstrate actual prejudice to itself from the lawyer's service in dual roles.

Q: Does it matter that the testimony would be cumulative and undisputed?

A: The facts framed the question (mostly cumulative testimony, facts not strongly disputed, the controversy turning on legal effect), and the Committee concluded the lawyer was not a necessary witness for his client and need not withdraw.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 3.08 (lawyer as witness; ABA Model Rule 3.7), including Rule 3.08(b), and its Comment 10. The analysis turns on who calls the lawyer and whether the lawyer is a witness necessary to establish essential facts for his own client, as construed by the Texas Supreme Court in Ayres v. Canales.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• Texas Disciplinary Rule 3.08, Rule 3.08(b), and Comment 10

Cases:

• Ayres v. Canales, 790 S.W.2d 554 (Tex. 1990), disqualification under the lawyer-witness rule requires a showing of actual prejudice

See also

• TX Ethics Op. 682: A Firm Lawyer as Advocate When a Colleague Is a Witness
• TX Ethics Op. 513: A Firm's In-House Accountant as an Expert Witness in the Firm's Case

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-475/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_475.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. A section symbol in a citation appeared in the source as an unreadable encoded character; it has been rendered as "Section."

QUESTION PRESENTED

Under the following facts does an attorney who is representing a plaintiff in a case have to withdraw from the case when he learns that he may be called as a witness by the defendant?

STATEMENT OF FACTS

A and B were involved in negotiations regarding the contents of a proposed contract between the two parties. A, a corporate entity, was represented in these negotiations by its attorneys who had represented it for many years in other matters. B alleges that the parties ultimately entered into a valid and enforceable contract. A is seeking a determination that there is no contract between the two parties. B claims that if this matter goes to trial, A's attorney will be called as a witness because he was privy to the negotiations and, therefore, he and his law firm should recuse themselves from the case. The attorney's testimony, if any, will be mostly cumulative of other witnesses. Further, it appears that any facts which the attorney might be required to testify about will not be strongly disputed. The primary controversy relates to the legal effect of the discussions and actions of the parties. A very much desires to be represented by the same attorney and law firm that was involved in the negotiations with respect to the alleged contract because of the many years of representation by that firm.

DISCUSSION

No. First, the lawyer is not being called as a witness by his client and is not a witness "necessary to establish essential facts on behalf of his client." Section 3.08 of the Texas Rules of Professional Conduct. Secondly, the testimony, when called by the other side, will not be adverse to the client. Rule 3.08(b). Moreover, as the Supreme Court said in its opinion in Ayres v. Canales, 790 SW2d 554 (Tex 1990): "Comment ten to Rule 3.08, however, states that the rule should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose. See also Texas Rules of Professional Conduct, Preamble at Section 15. In order to prevent such misuse of the rule, the trial court should require the party seeking disqualification to demonstrate actual prejudice to itself resulting from the opposing lawyer's service in the dual roles."

CONCLUSION

No. First, the lawyer is not being called as a witness by his client and is not a witness "necessary to establish essential facts on behalf of his client." Section 3.08 of the Texas Rules of Professional Conduct. Secondly, the testimony, when called by the other side, will not be adverse to the client. Rule 3.08(b). Moreover, as the Supreme Court said in its opinion in Ayres v. Canales, 790 SW2d 554 (Tex 1990): "Comment ten to Rule 3.08, however, states that the rule should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose. See also Texas Rules of Professional Conduct, Preamble at Section 15. In order to prevent such misuse of the rule, the trial court should require the party seeking disqualification to demonstrate actual prejudice to itself resulting from the opposing lawyer's service in the dual roles."

Tex. Comm. On Professional Ethics, Op. 475 (1991)