Can a firm created by a merger represent the former firm in a malpractice case when a member of that former firm will have to testify?

Plain-English summary

The committee considered firm "AB," which was formed when defendant firm "B" merged with firm "A." Firm AB proposed to represent the former firm B and its partners in a legal malpractice case brought against them. The committee concluded that this representation was improper because it appeared that one of the members of firm B would have to testify as a witness at the trial of the malpractice case, citing DR 5-101(A), DR 5-102, EC 5-9, and LE Op. 311 and LE Op. 557.

Currency note

This opinion was issued in 1985, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note records that under current Rule 3.7(c) there is no longer disqualification of the entire firm when a lawyer must testify, unless the representation would create a conflict under Rule 1.7 or Rule 1.9; the disqualification is not imputed to the lawyer's firm absent an actual conflict of interest. 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 Treat this page as historical context, not current guidance.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: Could the merged firm defend the former firm in the malpractice case?

A: Under this 1985 opinion, no; because a member of the former firm appeared likely to testify, the committee found the representation improper under the former Code's lawyer-as-witness rules.

Q: What made the testimony decisive?

A: The committee treated the prospect that one of firm B's members would have to testify as a witness at the malpractice trial as the disqualifying factor, citing DR 5-101(A) and DR 5-102.

Q: Would the result be the same today?

A: The committee note states that under current Rule 3.7(c) the entire firm is no longer disqualified when a lawyer must testify, unless the representation would create a conflict under Rule 1.7 or Rule 1.9.

Background and rules framework

The opinion applied the former Code's lawyer-as-witness rules, DR 5-101(A) and DR 5-102, to a firm that arose from a merger and then proposed to defend its predecessor firm in a malpractice suit in which a member of that predecessor would testify. The committee note maps the question onto current Virginia Rule 3.7(c) on imputation of the advocate-witness disqualification, corresponding to ABA Model Rule 3.7.

Citations and references

Rules of Professional Conduct:

• DR 5-101(A) and DR 5-102 (lawyer as witness) (former Code)
• EC 5-9 (former Code; the lawyer-witness ethical consideration)
• Virginia Rule 3.7(c) / ABA Model Rule 3.7 (lawyer as witness; imputation to the firm)

Other opinions cited:

• Virginia LE Op. 311
• Virginia LE Op. 557

See also

• VA LEO 729: A Lawyer-Partner Who Will Testify for the Client
• VA LEO 655: A Law Partner as Material Witness in Arbitration
• VA LEO 686: Substitute Judge's Firm in a Related Civil Suit

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0652.pdf

Original opinion text

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

LEGAL ETHICS OPINION 652

CONFLICT OF INTEREST – SUCCESSOR FIRM REPRESENTING NEW PARTNER.

It is improper for law firm AB to represent the former firm B and its partners in a legal malpractice case when firm AB was formed as a result of the merger of defendant firm B and firm A, and it appears necessary that one of the members of firm B will have to testify as a witness in the trial of the legal malpractice case. [ DR:5-101(A), DR:5-102, EC:5-9, LE Op. 311 and LE Op. 557]

Committee Opinion
January 16, 1985

Legal Ethics Committee Notes. – See Rule 3.7© 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.