Can in-house counsel represent the employer at an administrative hearing where counsel will be the only witness, and can the hearing examiner overrule an objection?

Currency note

The Virginia State Bar's editor's note states that this opinion was overruled in part by LE Op. 1528 (see footnote 1 of that opinion for scope). Treat the conclusions below as the historical record, qualified by that later opinion.

This opinion was issued in 1990, 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 editor's note also observes, current Rule 3.7(a) uses "adversarial proceeding" rather than the old Code's "trial." 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

The inquiry asked whether in-house counsel could represent his employer at a Virginia Employment Commission (VEC) hearing where the in-house counsel would be the employer's only witness, and whether it was improper for the VEC lawyer/appeals examiner to ignore an objection to that testimony. The committee assumed the in-house counsel was a Virginia attorney, because a non-lawyer or foreign attorney may appear before the VEC and would not be bound by the disciplinary rules.

The controlling rules were DR 5-102(A) (if, after undertaking employment, a lawyer learns he or a firm lawyer ought to be called as a witness for the client, he must withdraw from the trial unless a DR 5-101(B) condition exists) and DR 5-101(B) (allowing representation despite being a witness only where the testimony relates solely to an uncontested or formal matter, or solely to the nature and value of the lawyer's legal services, or where refusal would work a substantial hardship on the client given the lawyer's distinctive value). The committee noted (LE Op. 329) that administrative hearings are "litigation" for DR 5-102 purposes, and found LE Op. 976 dispositive: a client's mere desire to keep the lawyer despite his being a witness is not a "substantial hardship."

The committee concluded that if the Virginia in-house counsel's testimony would be relevant to the central issue of the cause of action, it would be improper for him to simultaneously represent the employer in the VEC proceeding; only testimony solely about the nature and value of legal services, or a genuine substantial-hardship situation, would permit both roles, because the roles of advocate and witness are inconsistent (EC 5-9). As for the hearing examiner, the committee said decisions on a disqualification motion are within the court's discretion and beyond its purview. It added, unprompted, that under DR 1-103(A) lawyers who know another attorney has committed a violation raising a substantial question as to fitness must report it (citing LE Op. 1308 and In re Himmel).

Common questions

Q: Can in-house counsel both represent the employer and be its only witness at a hearing?

A: Under this 1990 opinion, generally not, if the testimony is relevant to the central issue. The committee held it improper to simultaneously represent and testify unless the testimony relates solely to the value of legal services or withdrawal would cause a substantial hardship.

Q: Do administrative hearings count as "litigation" for the witness rule?

A: Yes. The committee cited LE Op. 329 for the view that, for ethical purposes, administrative hearings constitute litigation as contemplated by DR 5-102.

Q: Can the committee say whether the hearing examiner should have sustained the objection?

A: No. The committee said decisions on a motion to disqualify opposing counsel are within the court's discretion, so the propriety of the examiner's denial was beyond its purview.

Background and rules framework

The opinion interpreted former Virginia DR 5-102(A) and DR 5-101(B) (the lawyer-as-witness bar and its exceptions) and noted the reporting duty in DR 1-103(A). The lawyer-as-witness rule is now Virginia Rule 3.7 (which, per the editor's note, speaks of an "adversarial proceeding"), and the reporting duty is Rule 8.3.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-101(B), DR 5-102(A), DR 1-103(A); EC 5-9 (Code of Professional Responsibility)
• ABA Model Rule 3.7 (lawyer as witness); Model Rule 8.3 (reporting professional misconduct)

Cases:

• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988), discipline for failure to report another lawyer's misconduct.

Other opinions cited:

• ABA Formal Opinion 339.
• Virginia LE Op. 329 (administrative hearings are litigation); LE Op. 976 (dispositive on substantial hardship); LE Op. 723, 879, 907, 1136, 1162, 1308.

See also

• VA LEO 1394: Lawyer-Witnesses Taking the Case
• VA LEO 1387: Lawyer-Fiduciary's Firm and the Estate
• VA LEO 1364: In-House Counsel Indemnification
• VA LEO 1513: Lawyer-Witness Firm on Appeal

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1359.pdf

Original opinion text

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

Committee Opinion
June 28, 1990
LEGAL ETHICS OPINION 1359

ATTORNEY AS WITNESS – IN-HOUSE
COUNSEL – HEARING OFFICER: INHOUSE COUNSEL REPRESENTING
EMPLOYER WHEN THE IN-HOUSE
COUNSEL WILL BE A WITNESS;
PROPRIETY OF APPEALS EXAMINER
IGNORING OPPOSING COUNSEL’S
OBJECTION TO SUCH
REPRESENTATION.

You have asked the Committee to consider the propriety of in-house counsel
representing his employer at a Virginia Employment Commission (VEC) hearing when
the in-house counsel will be the only witness for the employer. In addition, you wish to
know whether it is improper for the lawyer/appeals examiner for the VEC to ignore an
objection to such testimony.
For the purposes of this opinion, the Committee will assume that in-house counsel is a
Virginia attorney, since a non-lawyer or a foreign attorney may represent a party before
the VEC, and, as such, neither the non-lawyer or foreign attorney can be required to
adhere to the Disciplinary Rules.
The appropriate and controlling Disciplinary Rules relevant to your inquiry are DR:5-101(B) and DR:5-102(A). Disciplinary Rule 5-102(A) provides that if, after undertaking
employment, an attorney learns, or it becomes obvious that he or a lawyer in his firm
ought to be called as a witness on behalf of his client, he shall withdraw from the conduct
of the trial, and his firm, if any, shall not continue the representation, unless one of the
conditions enumerated in DR:5-101(B) exists. Disciplinary Rule 5-101(B) provides that it
is permissible for an attorney to accept employment even if he knows or it is obvious that
he or another attorney in his firm ought to be called as a witness if (1) the testimony will
relate solely to an uncontested matter or to a matter of formality and no substantial
evidence will be offered in opposition to the testimony; (2) the testimony will relate
solely to the nature and value of the legal services rendered in the case by the lawyer or
his firm to the client; or (3) 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.
As indicated in the Committee's prior LE Op. 329, for the purposes of ethical conduct,
administrative hearings constitute litigation as contemplated by DR:5-102. The
Committee further directs your attention to LE Op. 976 which in the Committee's view is
dispositive of your inquiry. In that earlier opinion, the Committee found that, where trial
counsel ought to be called as a witness on behalf of his client, DR:5-102(A) would
mandate that trial counsel withdraw from the proceeding unless one of the circumstances
enumerated in DR:5-101(B) existed. The only possible exception which could have
applied under the facts of that inquiry was an analysis of whether the withdrawal would
"work a substantial hardship on the client because of the distinctive value of the

Committee Opinion
June 28, 1990
lawyer or his firm as counsel in the particular case." ( DR:5-101(B)(3)) The Committee
concluded by stating that the client's desire to have the attorney continue representation
even though the attorney might be called as a witness was not sufficient to warrant a
"substantial hardship." (See also ABA Formal Opinion No. 339 and LE Op. 1136)
Therefore, if the Virginia in-house counsel's testimony will be relevant to the central
issue of the cause of action, it would be improper for the in-house counsel simultaneously
to engage or continue the representation of his client/employer in the VEC proceeding.
Only if the testimony will be related solely to the nature and value of the legal services
rendered, or in the instance where withdrawal would result in substantial hardship
to the client, may an attorney represent a client and be called as a witness to testify on
his/her behalf. (See LE Op. 723, LE Op. 879, LE Op. 907, LE Op. 1162) The Committee
has consistently been of the view that the role of an advocate and of a witness are
inconsistent; an advocate advances or argues the cause of another, while a witness states
facts objectively. EC:5-9. Where there is doubt as to whether an attorney should testify
on behalf of his client, the attorney should consider the interests of the client and if the
client's interests would be better served by his attorney's testimony than by his
representation, the attorney should withdraw and should side on the issue of testifying.
As for the matter of the attorney/hearing examiner's conduct, the Committee believes
that decisions of trial procedures in response to a motion for disqualification of opposing
counsel are in the discretion of the court. Therefore, regardless of whether a conflict may
have existed, it is beyond the purview of the Committee to opine as to the propriety of
the finder of fact or the court's denial of a motion for disqualification, the basis of which
raised an ethical violation.
While you have not inquired about your duty to report, please be advised that all
lawyers having knowledge that another attorney has committed a violation of the
Disciplinary Rules that raises a substantial question as to that lawyer's fitness to practice
law in other respects have an obligation under DR:1-103(A) to report such knowledge to
the appropriate authority. Whether an attorney's conduct is such that it raises a
"substantial question as that lawyer's fitness to practice law in other respects" is a case-by-case decision which should be made after consideration of the facts and analysis of the
impact on the offending lawyer's fitness to practice law. (See LE Op. 1308 and In re
Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988))
Committee Opinion
June 28, 1990
Legal Ethics Committee Notes. – Editor’s Note: Rule 3.7(a) uses the term “adversarial
proceeding” rather than the old Code’s “trial”.
Editor’s Note. – Overruled in part by L E Op. No. 1528. See footnote 1 of the opinion
for scope.