Can lawyers represent a client in a suit when they and others in their firm will be called as critical witnesses on the central issue?

Plain-English summary

Partnership ABC consisted of minority partners A and B and general partner C. Disputes led A and B to sue C for dissolution; C counterclaimed, and the suits settled with C buying out A and B. Sixteen months later, partner A, believing C had withheld information during the buy-out, sued to set aside the settlement for fraud-in-the-inducement, represented by Attorney A, with partners A and B acting in concert though B was not a party. In discovery, Lawyer I (former Vice President and General Counsel to partner B) and Lawyer II, both members of Law Firm B, were deposed about the discovery date and nature of the alleged fraud, and Lawyer I was served with a trial subpoena. Their testimony, and that of others in their firm, was critical to the discovery date of the alleged fraud. Partner B then filed a third suit against C, represented by Lawyers I and II and their firm. The committee was asked whether Lawyers I and II and their firm could accept and continue that representation.

The controlling rules were DR 5-101(B) (a lawyer must not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, subject to three exceptions) and DR 5-102(B) (a lawyer may continue representation after learning he or a firm lawyer may be called as a witness other than on behalf of his client, until it becomes apparent the testimony may be prejudicial to the client). The committee noted that DR 5-101(B) applies whether the lawyer ought to be called by his own client or by the opposing party, and that whether adverse counsel "ought" to call an attorney is a fact-specific question; it cautioned that creating a witness-lawyer can be a tactic to manipulate the adversary process, citing Kroungold v. Triester and Cottonwood Estates v. Paradise Builders, and that resolving a disputed need to testify is for a finder of fact, beyond the committee's purview.

Assuming the facts that Lawyers I and II's testimony was critical and material to the central fraud issue, the committee concluded they should not have accepted employment to represent partner B in the third suit, since they knew or should have known they ought to be called as witnesses, and no exception under DR 5-101(B) was indicated. Because acceptance was improper ab initio, the committee found DR 5-102(B)'s latitude to continue did not apply.

Currency note

This opinion was issued in 1991, 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) provides that a lawyer's disqualification as a witness is not imputed to the firm unless the representation would create a conflict under Rule 1.7 or Rule 1.9. 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 lawyer take a case knowing he or a firm colleague will be a witness?

A: Under this 1991 opinion, generally no. The committee held that DR 5-101(B) barred accepting employment where the lawyer knows or it is obvious that he or a firm lawyer ought to be called as a witness, absent one of the rule's three exceptions, and none was shown here.

Q: Does it matter whether the lawyer is called by his own client or the other side?

A: No. The committee said the proscription on accepting employment applies equally to a lawyer who ought to be called as a witness either on behalf of his client or by the opposing party.

Q: Could the lawyers continue once they learned they would testify?

A: No. Because the committee viewed acceptance of the employment as improper from the start, it found DR 5-102(B)'s latitude (which lets a lawyer continue until testimony becomes prejudicial to the client) inapplicable.

Background and rules framework

The opinion interpreted former Virginia DR 5-101(B) (accepting employment when the lawyer or a firm lawyer ought to testify) and DR 5-102(B) (continuing representation when called as a witness other than for the client). The lawyer-as-witness rule is now Virginia Rule 3.7, which, per the committee note, no longer imputes the testifying lawyer's disqualification to the firm absent a conflict under Rule 1.7 or 1.9.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-101(B), DR 5-102(B) (Code of Professional Responsibility)
• ABA Model Rule 3.7 (lawyer as witness)

Cases:

• Kroungold v. Triester, 521 F.2d 763 (3d Cir. 1975), the witness rule was not designed to let a lawyer call opposing counsel as a witness and thereby disqualify him.
• Cottonwood Estates v. Paradise Builders, 624 P.2d 296 (Ariz. 1981), test for disqualifying an attorney called other than on behalf of his client.

See also

• VA LEO 1513: Lawyer-Witness Firm on Appeal
• VA LEO 1709: Lawyer-Witness at a Venue Hearing
• VA LEO 1849: Lawyer Testifying to a Client's Debt

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1394.pdf

Original opinion text

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

Committee Opinion
February 15, 1991
LEGAL ETHICS OPINION 1394

WITNESSES/ATTORNEY AS:
ATTORNEYS REPRESENTING CLIENT
IN PENDING CIVIL SUIT IN WHICH
ATTORNEYS AND OTHER MEMBERS
OF THE FIRM WILL BE CALLED TO
TESTIFY.

You have advised the Committee that disputes arose within partnership ABC which
was comprised of minority partner A, minority partner B, and general partner C. The
disputes in question resulted in separate suits being filed by partners A and B against C,
calling for dissolution of the partnership and other relief. General partner C
counterclaimed for damages in both suits, and the suits were ultimately settled following
several months of negotiations, with general partner C buying out partners A and B at an
agreed-upon price.
Sixteen months later, having learned certain information in the interim which led him to
conclude that general partner C had withheld pertinent information during the buy-out
negotiations, partner A brought a second suit against C to set aside the settlement,
alleging fraud-in-the-inducement. Partner A was represented in this second suit by
Attorney A, and you indicate that partners A and B acted in concert during the course
of this suit, although partner B was not a party to it. You advise that during the course
of discovery, Lawyer I, who previously served as Vice President and General Counsel to
partner B (a corporation and its subsidiaries), and Lawyer II were deposed by defendant
C as to the discovery date and nature of the alleged fraud. The facts you cite indicate that
Lawyers I and II were both members of Law Firm B. Furthermore, you indicate that
Lawyer I has been served by defendant general partner C with a trial subpoena to be a
witness and that the testimony of Lawyers I, II, and other members of their firm is critical
and will be required as to the discovery date of the alleged fraud.
Subsequently, sixteen months after the filing of the second suit and during its pendency,
partner B filed a third suit against general partner C. Partner B is represented by Lawyers
I and II, who have been deposed in the second suit as noted above, and their law firm,
with which B has been involved from the early stages of the formation of the ABC
partnership.
You have asked that the Committee consider the propriety of Lawyers I and II and their
firm accepting and continuing the representation of partner B in the third suit.
The appropriate and controlling disciplinary rules relative to the issue you raise are
DR:5-101(B), which dictates that a lawyer not accept employment in contemplated or
pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be
called as a witness, except in three circumstances; and DR:5-102(B), which permits a
lawyer to continue representation of a client in litigation after he learns or it is obvious
that he or a lawyer in his firm may be called as a witness other than on behalf of his client
until such time as it becomes apparent that his testimony is or may be prejudicial to his
client.

Committee Opinion
February 15, 1991

The Committee notes that the proscription of DR:5-101(B), as to initial acceptance of
employment, is equally applicable to a lawyer who ought to be called as a witness either
on behalf of his client or by the opposing party. The question of whether adverse counsel
"ought" to call an attorney for the opposing side must be determined on a factual, case-by-case basis. Where there is a dispute as to the necessity for an attorney to testify,
the Committee is of the belief that the dispute must be resolved by a finder of fact,
utilizing the proper court procedures for challenging a witness subpoena. The Committee
cautions that such tactics hold the potential for improper manipulation of the adversary
process through the creation of a witness-lawyer who then is subject to the withdrawal or
disqualification mandates of DR:5-101(B) and DR:5-102(B), even though the substance
of the lawyer's testimony may be cumulative or equally available from other sources.
(See, e.g., Kroungold v. Triester, 521 F.2d 763, 766 (3rd Cir. 1975) (citing and quoting
footnote to Model Code of Prof. Resp. DR:5-102(B) stating that rule "was not designed
to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as
counsel"); Cottonwood Estates v. Paradise Builders, 624 P.2d 296, 302 (Az. 1981)
(although disqualifying attorney-witness from representing corporation of which he was
an officer, court set out test indicating that "[w]hen an attorney is to be called other than
on behalf of his client, a motion for disqualification must be supported by a showing that
the attorney will give evidence material to the determination of the issues being litigated,
that the evidence is unobtainable elsewhere, and that the testimony is or may be
prejudicial to the testifying attorney's client").) Such a factfinding function is beyond the
purview of the Committee.
Assuming the validity of the facts as you have provided them, which facts indicate that
the testimony of Lawyers I and II is critical and material to the central issue of fraud, the
Committee is of the opinion that Lawyers I and II should not have accepted employment
to represent Partner B in the third suit, since they knew or should have known that they
ought to be called as witnesses in the matter. You have provided no indication of the
existence of any of the three circumstances articulated in DR:5-101(B) as exceptions.
Since, under the facts you have provided, the Committee views the acceptance of
employment to have been improper ab initio, the Committee finds inapplicable the
latitude provided under DR:5-102(B) to an attorney who is called as a witness other than
on behalf of his client, which would otherwise allow the attorney to continue the
representation until it is apparent that his testimony is or may be prejudicial to his
client.
Committee Opinion
February 15, 1991
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.