After a partner testified for the client at trial, can another partner from the same firm handle the client's appeal to the state supreme court?

Plain-English summary

Partner A and Law Firm Alpha had advised a client in family-business and estate negotiations, then Partner B of the same firm sued the late father's estate for breach of a contract to make a will. When a factual dispute emerged, the firm withdrew for discovery and trial, and Partner A testified for the client about the negotiations he had relied on in advising that a contract existed. The trial court found no contract but held the will's no-contest clause ineffective because the suit was brought in good faith on advice of counsel. Both sides appealed. The client asked Law Firm Alpha to represent her before the Supreme Court of Virginia, with Partner B (not Partner A) arguing, on the understanding the firm could not try the case on remand if Partner A would testify again. The committee was asked whether Partner B could serve as counsel of record on appeal, given that Partner A's testimony was concluded and witness credibility was not before the Supreme Court.

The controlling rule was DR 5-101(B), which bars a lawyer from accepting employment in litigation where he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, subject to exceptions for uncontested matters, matters of formality, or substantial hardship from the distinctive value of the lawyer or firm.

The committee concluded that employment on the appeal did not constitute a separate representation from the trial, because argument on appeal might require an attack on the credibility of the partner's trial testimony. It held that the prohibition against a lawyer serving simultaneously as witness and advocate applied equally at the appellate level, so it would not be proper for Partner B to represent the client as counsel of record on appeal to the Supreme Court of Virginia.

Currency note

This opinion was issued in 1993, 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 opinion's committee note observes, current Rule 3.7(c) provides that the disqualification is no longer imputed to the lawyer's firm unless representation would create an actual conflict under Rule 1.7 or Rule 1.9, a change from the firm-wide disqualification this opinion applied. 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 whose partner testified at trial handle the client's appeal?

A: Under this 1993 opinion, no. The committee held that the appeal was not separate from the trial because appellate argument might attack the credibility of the partner's testimony, so the advocate-witness bar applied and the firm's other partner could not serve as counsel of record on appeal.

Q: Did it matter that witness credibility was not before the Supreme Court?

A: The committee was not persuaded. It reasoned that argument on appeal might still require an attack on the credibility of the partner's trial testimony, so the prohibition applied at the appellate level.

Q: Would the result differ under current Virginia rules?

A: The opinion's committee note states that under current Rule 3.7(c) the disqualification is no longer imputed to the firm unless there is an actual conflict under Rule 1.7 or 1.9, so the firm-wide bar this opinion applied has changed.

Background and rules framework

The opinion interpreted former Virginia DR 5-101(B) (and referenced DR 5-101(A)), barring a lawyer from advocacy where he or a firm member ought to be a witness. The advocate-witness rule is now Virginia Rule 3.7; Rule 3.7(c) limits imputation to the firm to cases of an actual Rule 1.7 or 1.9 conflict, as the committee note states.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-101(B); DR 5-101(A) (Code of Professional Responsibility)
• ABA Model Rule 3.7 (lawyer as witness); Model Rule 1.7 (concurrent conflicts)

See also

• VA LEO 1709: Witness-Advocate Disqualification at a Hearing
• VA LEO 1849: Lawyer Testifying to a Debt Owed the Client
• VA LEO 1528: Duty to Report a Lying Lawyer

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1513.pdf

Original opinion text

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

Committee Opinion
May 11, 1993
LEGAL ETHICS OPINION 1513

ATTORNEY AS WITNESS: ATTORNEY
REPRESENTING CLIENT ON APPEAL
TO THE SUPREME COURT OF
VIRGINIA AFTER ATTORNEY'S
PARTNER TESTIFIED ON BEHALF OF
CLIENT AT TRIAL.

You have presented a hypothetical situation in which Partner A and Law Firm Alpha
represented a client in negotiations with her father and two sisters concerning the
disposition of a family business and the distribution of the father's estate during his
remaining lifetime and upon his death. As a result of these negotiations, a plan was put in
place whereby the two sisters' stock would be redeemed immediately; part of the
father's stock would be transferred to the client; a redemption agreement (personally
guaranteed by the client) would be executed for the eventual acquisition of the father's
shares; and a will and trust would be made by the father, providing for the allocation of
his estate among the three daughters in agreed proportions. The father's stock was
ultimately redeemed several years later, prior to his death. At the time of this redemption,
the father amended his will and trust to eliminate the client's share of his estate as had
been included in the earlier agreed plan, with the exception of her one-third share of the
father's residence. Neither the father nor the sisters notified the client of this change. The
amended will contained a "no-contest" or in terrorem clause providing that anyone who
challenged the will would forfeit her share of the father's estate.
You have further indicated that the client first learned of the change after the death of
her father several years later. She then contacted Partner A, who advised her that the
change in her father's will and trust violated a contract to make a will between her father
and herself (as well as the other sisters) made a number of years earlier. Based on this
advice, Partner B of Law Firm Alpha brought suit on behalf of the client against the
estate of her late father.
Shortly after pretrial discovery began in the case, when it was first learned that there
would be a factual (as opposed to a purely legal) dispute, it became obvious that Partner
A would need to be called as a witness at the trial of this matter. The law firm, therefore,
withdrew from the representation of the client for the remainder of pretrial discovery and
the trial of the case. Partner A was called as a witness on behalf of the client at the trial
and testified concerning the negotiations, communications, and actions that Partner A
relied upon in advising the client that a contract to make a will had been made and
subsequently breached. Witnesses who were called by the estate and the sisters testified
that no contract had been made (or breached).
You indicate that the trial judge ultimately ruled that the evidence failed to establish the
existence of a contract, finding for the defendants on the contract claim. The trial judge,
however, found that the plaintiff had brought her suit "in good faith upon the advice of
counsel," and held that a "no-contest" provision in the amended will of the client's father
would not be "effective" under such circumstances to deprive plaintiff of her one-third
share of the father's residence.

Committee Opinion
May 11, 1993

You advise that the client, through her substitute trial counsel, has filed a notice of
appeal to the trial court's denial of her breach of contract claim on the merits. The
defendants have noticed an appeal to the trial court's ruling that the "no-contest" clause in
the will would not be effective as to the client in these circumstances. It is anticipated that
the client will fully pursue her appeal to the Supreme Court of Virginia. For purposes of
this appeal, the client has requested that Law Firm Alpha represent her as counsel of
record before the Virginia Supreme Court, with the understanding that if the ultimate
decision of the Supreme Court is to remand the case for a new trial, Law Firm Alpha will
not be able to represent her at trial if Partner A is likely to testify. Having a longstanding relationship with the client, the law firm would like to serve as counsel of record
for the client on appeal with Partner B (but not Partner A) appearing before the Supreme
Court as counsel on behalf of the client on appeal.
You have asked the committee to opine whether, under the facts of the inquiry, Partner
B in Law Firm Alpha may represent the client as counsel of record in connection with the
appeal to the Supreme Court of Virginia, given the fact that Partner A's testimony is now
concluded and that credibility of witnesses is not an issue to be decided by the Supreme
Court.
The appropriate and controlling Disciplinary Rules related to your inquiry is DR:5101(B) which states, in pertinent part, that a lawyer shall 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 that he may undertake the employment and he
or a lawyer in his firm may testify if the testimony will relate solely to an uncontested
matter or to a matter of formality and there is no reason to believe that substantial
evidence will be offered in opposition to the testimony, or if, as to any matter, 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.
The committee is of the opinion that employment on the appeal does not constitute a
separate representation from that of the trial since argument on appeal may require an
attack on the credibility of the partner's testimony at trial.
Therefore, the committee is of the opinion that the prohibitions of DR: 5-101(A)
against a lawyer serving simultaneously as a witness and an advocate are equally
applicable at the appellate level of a case. Thus, the committee opines that it would not be
proper for Partner B to represent the client as counsel of record on appeal to the Supreme
Court of Virginia.
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.