Can our firm's in-house CPA testify as an expert witness in a case the firm is handling?

Plain-English summary

The question was whether a Certified Public Accountant employed as an internal controller by a law firm may testify as an expert in a case in which the firm is counsel. The Committee began with DR 3.08, which bars a lawyer from acting as advocate in a case in which the lawyer knows or believes he is or may be called as a witness, subject to exceptions. Although that rule does not precisely address attorneys as expert witnesses, the Committee found it applicable here, relying on Warrilow v. Norrell, where the appeals court held the trial court abused its discretion by letting a party's attorney testify as an expert, noting a different expert could and should have been used.

The Committee then applied DR 5.03, which makes the rules applicable to non-lawyers employed by, retained by, or associated with a lawyer, and requires the lawyer to make reasonable efforts to ensure the non-lawyer's compliance. It reasoned that if an attorney may not testify as an expert, neither may that attorney's employee. It added a confidentiality concern: as a testifying expert, the accountant's working papers, reports, and reviewed materials would be subject to discovery, so using the in-house CPA could waive the attorney-client privilege once he is designated; under DR 1.05 the lawyer has no applicable exception to waive that privilege, and what the lawyer cannot do, the employee cannot do either.

The Committee concluded that a lawyer who uses an in-house accountant as a testifying expert would violate DRs 5.03, 3.08, and 1.05, unless the accountant's testimony is of the same nature that would permit an attorney to testify as an expert in a case in which the attorney is representing a party.

Currency note

This opinion was issued in 1995, 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 March 1, 2005 amendment to the fee rule, Rule 1.04, and 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 Treat this page as historical context, not current guidance.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: Can a firm's in-house accountant be the firm's testifying expert in its own case?

A: The Committee concluded generally no. A lawyer who uses an in-house accountant as a testifying expert violates DRs 5.03, 3.08, and 1.05, unless the testimony is of the same nature that would permit an attorney to testify as an expert in a case he is handling.

Q: Why does the lawyer-as-witness rule apply to a non-lawyer employee?

A: The opinion reasoned that DR 5.03 makes the rules apply to non-lawyers employed by or associated with a lawyer, so if an attorney could not testify as an expert in the firm's case, neither may the attorney's employee.

Q: What is the confidentiality problem?

A: The Committee explained that a testifying expert's working papers, reports, and reviewed materials become discoverable, so designating the in-house CPA could waive the attorney-client privilege, and under DR 1.05 the lawyer has no applicable exception to waive it.

Background and rules framework

The opinion interprets DR 3.08 (lawyer as witness; ABA Model Rule 3.7), DR 5.03 (responsibilities regarding non-lawyer assistants; Model Rule 5.3), and DR 1.05 (confidentiality; Model Rule 1.6), reading the three together so that limits on an attorney testifying extend to the attorney's non-lawyer employee. It relies on Warrilow v. Norrell for applying the witness rule to expert testimony by a party's own side.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• MR 5.3 (responsibilities regarding non-lawyer assistants)
• MR 1.6 (confidentiality of information)
• Texas Disciplinary Rules 3.08, 5.03, 1.05

Cases:

• Warrilow v. Norrell, 791 S.W.2d 515 (Tex. App.-Corpus Christi 1989, writ denied), abuse of discretion to allow a party's attorney to testify as an expert

See also

• TX Ethics Op. 553: An Expert Witness Employed by a Party With a Contingent-Fee Interest
• TX Ethics Op. 682: A Firm Lawyer as Advocate When a Colleague Is a Witness
• TX Ethics Op. 678: A Lawyer Serving as Executor and Counsel for the Executor

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-513/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_513.pdf

Original opinion text

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

QUESTION PRESENTED

Can a Certified Public Accountant employed as an internal controller by a law firm, ethically testify as an expert in a case in which the law firm is employed?

DISCUSSION

Texas Disciplinary Rule 3.08 states that a lawyer shall not act as attorney in a case in which he or she knows or believes that the lawyer is or may be called as a witness, unless the testimony falls within one of the exceptions set out in the rule. Although this rule does not precisely address the service of attorneys as expert witnesses, the rule is applicable here as described in Warrilow v. Norrell, 791 S.W.2d 515 (Tex.App.--Corpus Christi 1989, writ denied). In this case, the appeals court found that the trial court abused its discretion by allowing one of the party's attorneys to testify as an expert witness. The court stated that a different expert witness could have and should have been used.

Rule 5.03 of the Texas Disciplinary Rules makes such rules applicable to non-lawyers who are employed by, retained by or associated with a lawyer. Such lawyer shall make reasonable efforts to ensure that the non-lawyer is in compliance with these rules. Therefore, under Rule 5.03, if an attorney may not testify as an expert witness, neither may an employee of that attorney serve as a testifying expert witness.

Furthermore, as a testifying expert witness, the accountant's working papers, reports and any material reviewed by the accountant would be subject to discovery. The use of the law firm's in-house Certified Public Accountant could lead to a waiver of attorney-client privilege once he is designated a testifying expert. According to Texas Disciplinary Rule 1.05, no exceptions exist in this situation for the lawyer to waive that privilege. As discussed above, if the lawyer cannot waive the attorney-client privilege, neither can an employee of that lawyer. Therefore the naming of the employee as an expert witness could constitute a violation of Rule 1.05 because of the waiver of the attorney-client privilege.

CONCLUSION

A lawyer who uses an in-house accountant as a testifying expert witness would be in violation of Texas Disciplinary Rules 5.03, 3.08, and 1.05, unless the accountant's testimony is the same nature as would permit an attorney to testify as an expert on a case in which he is representing a party.

Tex. Comm. On Professional Ethics, Op. 513 (1995)