Must a firm withdraw when one of its partners will have to testify as a material witness in the client's case?

Plain-English summary

The committee considered a law firm representing a client in a litigated matter when it becomes apparent that one of the firm's partners will be required to testify as a material witness in an arbitration hearing concerning the same case. It concluded it is improper for the firm to continue the representation, unless the factual circumstances qualify for one of the exceptions set out in DR 5-101(B), citing DR 5-101(B), DR 5-102(A), and EC 5-10.

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), a lawyer's disqualification for having to testify is no longer imputed to the firm unless there is an actual conflict of interest 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 Treat this page as historical context, not current guidance.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: Must a firm withdraw when a partner becomes a material witness in the case?

A: Under this 1985 opinion, yes, once it is apparent the partner will be a material witness in the arbitration on the same case, unless a DR 5-101(B) exception applies.

Q: Would the firm still be disqualified under current rules?

A: The committee note states that under current Rule 3.7(c), the testifying lawyer's disqualification is not imputed to the firm unless there is an actual conflict under Rule 1.7 or Rule 1.9.

Background and rules framework

The opinion applies the former Code's DR 5-101(B) and DR 5-102(A), the advocate-witness rules, and EC 5-10. 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(B); DR 5-102(A); EC 5-10 (lawyer as witness) (former Code)
• Virginia Rule 3.7(c) / ABA Model Rule 3.7 (lawyer as witness; imputation to the firm)

See also

• VA LEO 729: A Lawyer-Partner Who Will Testify for the Client
• VA LEO 960: A Partner Testifying While the Firm Represents It on Fees
• VA LEO 958: Representing a Law Partner in a Private Dispute

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0655.pdf

Original opinion text

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

LEGAL ETHICS OPINION 655

CONFLICT OF INTEREST – LAW
PARTNER APPEARING AS WITNESS IN
ARBITRATION PROCEEDING.

It is improper for a law firm to continue its representation of a client in a litigated
matter when it becomes apparent that one of the firm's partners will be required to testify
as a material witness in an arbitration hearing concerning the same case, unless the
factual circumstances in the matter qualify for the application of one of the exceptions set
forth in DR:5-101(B). [DR:5-101(B), DR:5-102(A), EC:5-10]

Committee Opinion
January 17, 1985

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.