Must a lawyer who will be a necessary witness withdraw from the case, and does the substantial-hardship exception save the representation when the testimony concerns a pre-trial issue?

Plain-English summary

Two attorneys, X and Y, neither a member of the Virginia State Bar, represented two separate defendants in a federal criminal action in Virginia arising from the same activities. They claimed to have reached agreements with IRS agents in another state giving their clients transactional immunity from prosecution for tax violations; the agents disputed that. Whether such immunity had been granted was a material, partially dispositive issue, set for a pre-trial hearing. Attorneys X and Y stated they were the best, and in some cases the only, witnesses to the conversations with the agents, making them necessary witnesses.

The attorneys took the position that the immunity issue was pre-trial and therefore not governed by DR 5-102, and alternatively that the substantial-hardship exception in DR 5-101(B)(3) applied. On the first point, the committee concluded that the Code of Professional Responsibility draws no distinction between testifying on pre-trial issues and testifying at trial. On the second, the committee found it lacked sufficient information, beyond conclusory statements not agreed to by all parties, to find that withdrawal would work a substantial hardship on the clients.

The committee restated that DR 5-102 and DR 5-101 are directed against assuming or continuing representation when the attorney must testify on behalf of his client, because the roles of adversary and witness are inconsistent, and withdrawal is required unless it 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." Quoting EC 5-10, it noted the weighing of the client's sacrifice, the materiality of the testimony, and the effectiveness of the representation, with doubts resolved in favor of the lawyer testifying and against continuing as advocate. On the limited facts, the committee opined it would be inappropriate for attorneys X and Y to continue as counsel while testifying on the issues.

Currency note

This opinion was issued in 1988, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 3.7(c) no longer disqualifies the entire firm when a lawyer must testify, and the testifying lawyer's disqualification is not imputed to the firm unless an actual conflict under Rule 1.7 or Rule 1.9 exists. 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 the lawyer-witness rule apply to testimony at a pre-trial hearing?

A: Under this 1988 opinion, yes. The committee concluded the Code of Professional Responsibility drew no distinction between testifying on pre-trial issues and testifying at trial.

Q: When does the substantial-hardship exception let a lawyer-witness keep the case?

A: Under DR 5-101(B)(3), only where withdrawal would work a substantial hardship on the client because of the distinctive value of the lawyer or firm as counsel in the particular case. The committee found the record here insufficient to establish that.

Q: How is substantial hardship weighed?

A: Quoting EC 5-10, the committee identified the personal or financial sacrifice to the client, the materiality of the testimony, and the effectiveness of the representation, with doubts resolved in favor of the lawyer testifying and against continuing as advocate.

Background and rules framework

The opinion interpreted former Virginia DR 5-102 (withdrawal when the lawyer ought to be called as a witness) and the DR 5-101(B)(3) substantial-hardship exception, informed by EC 5-10. Virginia's current counterpart is Rule 3.7, the analog of ABA Model Rule 3.7; as the committee note records, current Rule 3.7(c) does not impute the testifying lawyer's disqualification to the firm absent an actual conflict.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-102 (lawyer as witness; withdrawal)
• Former Virginia DR 5-101(B)(3) (substantial-hardship exception)
• Former Virginia EC 5-10 (weighing whether the lawyer should withdraw or testify)
• ABA Model Rule 3.7 (lawyer as witness)

See also

• VA LEO 1394: Lawyer-Witnesses Taking the Case
• VA LEO 1359: In-House Counsel as the Only Witness
• VA LEO 1320: Prosecutor Testifying in Office's Case
• VA LEO 1387: Lawyer-Fiduciary's Firm and the Estate

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1136.pdf

Original opinion text

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

Committee Opinion
September 9, 1988
LEGAL ETHICS OPINION 1136

ATTORNEY AS WITNESS:
WITHDRAWAL IF IT WILL CAUSE
SUBSTANTIAL HARDSHIP ON THE
CLIENT.

Your inquiry, which has apparently been reviewed and approved by all interested
parties, presents the following set of facts. Attorneys X and Y, not members of the
Virginia State Bar, respectively represent two separate defendants before a United States
District Court in Virginia in a criminal action for the same activities. Attorneys X and Y
have apparently represented the defendants on the issues involved for more than four
years. Attorneys X and Y claim that they, on behalf of their clients, reached agreements
with Internal Revenue Service agents in another state to provide their respective clients
with transactional immunity from criminal prosecution for tax violations. The IRS agents
dispute the position. Among the issues under the pending indictments is the issue of
whether or not such immunity was granted. The issue is a material and partially
dispositive matter. A pre-trial hearing has been set to resolve the dispute over
transactional immunity.
Attorneys X and Y have stated that they are the best, and in some cases, the only
witnesses to the conversations with the IRS agents, making them necessary witnesses to
the disputed issue. Attorneys X and Y take the position that the immunity matter in issue
is pre-trial, and is not governed by DR:5-102. Alternatively, they assert that the
exceptions in DR:5-102, found in DR:5-101(B)(3), apply under the facts. The issues
require no particular subject matter expertise, and any capable, experienced trial attorney
could provide competent representation on behalf of the two criminal defendants. This
issue is apparently not a new issue in the case.
As to the first position taken by defense attorneys that the immunity matter in issue is a
pre-trial one, and is not governed by DR:5-102, the opinion of the Committee is that the
Code of Professional Responsibility does not provide a distinction between testifying in
pre-trial issues and testifying at trial.
As to whether or not attorneys X and Y fall within the exceptions offered by DR:5101(B)(3) to DR:5-102, the Committee is without sufficient information, other than
conclusory statements apparently not agreed to by all parties, to say that a substantial
hardship would be worked on the clients should attorneys X and Y withdraw from
representation.
The strictures of DR:5-102 and DR:5-101 are directed against the assumption or
continuance of representation if an attorney needs to testify on behalf of his client. The
roles of adversary and witness are inconsistent. Withdrawal must be effected unless it
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." DR:5-101(B)(3). Ethical
Consideration 5-10 [ EC:5-10] provides language to determine what constitutes a
substantial hardship:

Committee Opinion
September 9, 1988
Problems incident to the lawyer-witness relationship arise at different stages; they
relate either to whether a lawyer should accept employment or should withdraw
from employment. ... In the exceptional situation where it will be manifestly
unfair to the client for the lawyer ... to withdraw when he will likely be a witness
on a contested issue, he may serve as advocate even though he may be a witness.
In making such decision, he
should determine the personal or financial sacrifice of the client that may result
from his ... withdrawal therefrom, the materiality of his testimony, and the
effectiveness of his representation in view of his personal involvement. In
weighing these factors, it should be clear that ...withdrawal will impose an
unreasonable hardship upon the client before
the lawyer ... continues the employment. Where the question arises, doubts should
be resolved in favor of a lawyer testifying and against his ...continuing as an
advocate.
The emphasis added by the last sentence provides a necessary guide for the facts as
presented by your inquiry. The Committee therefore opines that, under the limited facts
presented, it would be inappropriate for attorneys X and Y to continue as counsel to their
respective clients and testifying on the issues.
Committee Opinion
September 9, 1988
Legal Ethics Committee Notes. – See Rule 3.7(c) stating that there is no longer
disqualification of the entire firm when a lawyer must testify, unless representation would
create a conflict under Rule 1.7 or Rule 1.9. Under Rule 3.7(c), this disqualification is
not imputed to the lawyer’s firm unless there is an actual conflict of interest.